"Amendments are an important step towards a big change"
— Habibullah Khan, Additional Chief Secretary, FATA
By Khalid Kheshgi
Habibullah Khan, Additional Chief Secretary, FATA Secretariat, rubbishes the rumour that bureaucracy, especially the political administration, is creating hurdles in the way of the implementation of the FCR reforms, insisting that the amendments will lead to political, social, economic and administrative changes in the underdeveloped Federally Administered Tribal Areas (FATA).

Majority of tribesmen in the seven tribal agencies have welcomed the announcement of the reforms package of the Frontier Crimes Regulation (FCR), and they want the government to implement it in letter and spirit.

"This is a good initiative. If implemented, it should promote a democratic system in the neglected tribal region and pave the way for socio-economic development," Zarnoor Afridi, a tribal elder from Jamrud tehsil in Khyber Agency told TNS.

However, he says, a similar announcement was made in the past also but things remained the same. He also suggests the formation of an autonomous FATA council for which elections should be held on the basis of adult franchise.

Maryam Bibi, a Wazir tribeswoman who runs a civil society organisation, is of the opinion that there is nothing in the package for women’s welfare. She insists that the local councils (in the tribal areas) should boast a proper representation of women. "Until the women get a place in the decision making process, their condition will never improve. It is good that the Political Parties Act has been extended to the tribal areas, but the political forces should also, at the same time, consider the status of women and give them a fair representation in their respective parties."

Mukhtar Khan Orakzai of Sadda town in Kurram Agency is in favour of the abolishment of the FCR altogether. He tells TNS that in the presence of the abovementioned law the tribal people could never flourish. "I appreciate the fact that in the reforms package, the administrative powers of the political agent have been curtail and the funds that he uses will now be audited.

"But will they be held accountable?" he asks. "There should be a proper forum of tribal elders for this purpose."

Shahzar Khan Wazir comes down hard on the parliamentarians of the tribal areas for opposing the reforms package. He says that the public representatives want the tribal people to remain as backward and ignorant as ever. There is joblessness and poverty (in the tribal areas). The people have no access to education and health facilities. Potable water is still a rarity. They have been condemned to live in the Stone Age.

The grouse against the region’s parliamentarians is quite common among the locals who feel that these "so-called representatives" are trying to create hurdles in the way of the reforms’ implementation. But there are people like Gul Rahman of Bajaur Agency who is opposed to the extension of the Political Parties Act to the tribal areas. His argument: this will strip the region of its traditions and customs.

Gul is also against the idea floated by some government circles about the merger of FATA with NWFP and the extension of the police system into the tribal belt. "The (tribal) people will never accept any such move," he declares.

Abbas Khan of Bajaur Agency lauds the changes in the century-old draconian FCR law. "It was due to the powers of the political agent to make arbitrary arrests for indefinite periods of time that freedom to live was unimaginable in the region. I am happy that women and children are exempted from arrest under collective responsibility now," he says.

Shah Sawar Khan, President, Mohmand Students Organisation, says the "entire tribal population is thankful to President Zardari for this great favour".

He calls the tribal parliamentarians as "conspirators who are trying to foil the government efforts to introduce reforms. But the youth will never let them succeed in their evil designs!"

Interestingly, a whole lot of tribesmen — even those who are literate and educated — don’t have a clue that the government has announced a reforms package at all. They say they are not concerned with laws and regulations; what they want is peace and tranquillity in the region, education for their kids and some sort of economic development so that they can find jobs for themselves.

‘Understanding FATA’, the two surveys conducted by a Peshawar based non-governmental organization in 2007 and 2008 provide a better insight to the life in federally administered tribal areas.

Frontier Crimes Regulation (FCR) being the lone administrative and justice system in the tribal belt is the main focus in the surveys. The first survey finds that majority of tribesmen in the seven tribal areas are strongly against the unreformed FCR.

They recommended amendment or complete abolishment of the regulation that is widely projected as a colonial-era draconian law. The tribal people perceived FCR as a suppressive tool in the hands of the political administration. Some of the tribesmen, however, believed that in the given environment FCR was still needed. Though majority of the tribal people rejected FCR, they were still confused which system would replace it.

The research study recommended that amendments in FCR should mainly address the human rights issues of tribal people and the word ‘crimes" from it should be removed as it conveys a very wrong impression of tribesmen.

The respondents in the survey suggested that section 40 and 44 of the regulation should be amended and the judicial and executive powers of the political agent should be separated. Bail system should be introduced in the regulation and the articles of ‘territorial and collective responsibilities’ should be done away with. It was proposed that the jurisdiction of the superior courts should be extended to the tribal areas so that the rights of the local population could be protected.

The other survey conduction in 2008 by the same organisation found that over 50 per cent of the people of tribal areas were dissatisfied with life in FATA. The 2000 respondents from the seven tribal areas opined that justice system, education and health were the most important services that the government should provide to the tribal people.

About the status of FATA, around 34 percent respondents sought integration with the North West Frontier Province (NWFP), 23 percent favoured status quo and 20 percent said that the status of a separate autonomous province should be accorded to FATA. Over 50 per cent wanted extension of Political Parties Act to the tribal belt.

On terrorism and security, 36 percent thought negotiating with militant groups was the best way forward, whereas only 15 percent saw the use of military force as a viable option. Nearly 60 percent saw Islamic teachings against suicide bombing. Fifty one percent tribesmen thought that the suicide attacks were a reaction to western influence, 25 percent people saw it a result of unemployment, 25 percent respondents held ignorance, 21 percent lack of education responsible for the trend of suicide bombing. Only 13.3 per cent tribal people believed it was a consequence of the influence of militant groups.

Regarding human rights, majority of the interviewees rejected the practices violating women rights like honour killings and forced marriages. They ranked democracy, lack of independent judiciary, and violence by security forces respectively as important issues affecting human rights in the belt.

Approximately 50 percent believed that Afghan refugees had negatively affected economy and undermined security of the tribal areas. Seventy-five percent wanted Afghan refugees to go back home.

Fed up with the situation in the tribal areas, some 60 percent of the surveyed people wanted emigration from the countries. They were, however, against going to USA and UK. They rather preferred going to Gulf countries particularly Saudi Arabia.

— Yousaf Ali

With the exception of senators and National Assembly members belonging to the Jamiat Ulema-e-Islam Fazl (JUI-F), almost all elected representatives from the Federally Administered Tribal Areas (FATA) have welcomed the extension of the Political Parties Act to the tribal region.

Those opposing the landmark step by the president argue that they were not taken into confidence prior to the announcement. "This was not a unanimous decision, although a meeting of FATA parliamentarians was held about a month ago and the participants were assured by the president that all decisions regarding the tribal region would be taken unanimously," says Senator Saleh Shah, talking to TNS.

The senator agrees that participation in political activities is the basic right of the people of the tribal areas, but the step would silence the elected members and surrender their authority to central leadership of the political parties.

He says the tribal areas have their own traditions and culture and taking a step without considering their culture and tradition would only result in harm.

The rest of the senators and assembly members, however, appreciate the step and say the amendments will increase political awareness among the tribal people which, in turn, will contribute to restoring peace and security and spread of education in the region.

Munir Khan Orakzai, MNA from Kurram Agency, tells TNS that the elected representatives from FATA are quite happy with the extension of the Political Parties Act and the amendments to the FCR.

According to Orakzai, tribal people are known for competition among their families, clans and tribes in terms of money, land and power. With the extension of the Political Parties Act, he says, a trend will start which will produce new leadership in the tribal areas.

He claims that only those people are opposing the step who are in favour of the status quo and do not want a positive change for the tribal people.

As for amendments to the FCR, Orakzai says it is encouraging that the long-standing demand of the tribal people has been addressed by giving them emancipation from the stronghold of the political agent.

There will be courts; no one will be able to detain a tribesman without registering an FIR; the maximum jail term has been reduced from three to two years while the office of the Political Agent has been brought under audit.

Hafiz Rasheed Ahmad, a Senator from Mohmand Agency, agrees with the extension of the Political Parties Act to tribal areas, but says he is not sure of a big change in the situation in the near future. "Being a government ally, I support the step, but I must insist it was taken without consulting all the elected FATA members."

He says the JUI-F members have expressed their reservations which should be addressed by the government. Other senators and National Assembly members have also supported the act and said it would bring a positive change in the lives of the tribal people.

The British-era law was enforced in 1901 with the purpose to protect the roads, buildings and other governmental infrastructure in the ‘unruly’ areas and not to use the tribal areas for anti-state activities and to ensure safe and secure supply lines.

However, the law became infamous mainly because of its controversial Collective Responsibility Clause which allows the arbitrary arrest of the whole family, clan and even tribe if a single person commits something wrong.

The News on Sunday: What are the reservations of the Awami National Party (ANP) over the recently announced reforms in Frontier Crimes Regulation (FCR)?

Haji Muhammad Adeel: You know whatever happens in Federally Administered Tribal Areas (Fata) has a direct impact on NWFP. If there is peace in Fata, there will be peace in the settled areas of the province and vice versa. If there is developed infrastructure in Fata, the burden on provincial infrastructure will be less. Same is the case with hospitals, schools, etc. The terrorists’ activities that started from tribal areas and Taliban control their network from Fata their direct impact is first on NWFP. We are the main stakeholders after the tribal people, but the federal government neither took the ANP leadership nor the provincial government into confidence before announcing the reforms.

In principle, the ANP is not against reforms in the FCR, but we do think is that the recently announced reforms would be suitable for the Fata of two decades ago. Now the situation in Fata is altogether different. There is mayhem in the tribal belt. Now the Taliban has established ‘Taliban’s Emirate of Waziristan’ and to re-gain its writ the government has launched full-fledged military operations in the area. The present reforms are just peanuts. We’ll have to go beyond it.

The tribal people should be given equal rights as enjoyed by the people of settled areas. Our demand is that Fata should be merged with NWFP and they should be given representation in the provincial assembly. Their ministers should be inducted in the provincial cabinet and Fata members of provincial assembly would be a major force in the assembly and even the chief minister could be elected from Fata.

Till the merger happens, the Political Parties Act and the Peshawar High Court and the Supreme Court jurisdiction should also be extended to Fata. If a citizen of settled area can enjoy access to courts, why can’t the tribesmen?

As per the reforms the government has introduced Fata Tribunal which will comprise two government officials and one retired judge. In Pakistan, a tribunal never provides justice to people. We also became victims of different tribunals. The government said that to extend the courts’ jurisdiction to Fata needs amendment in the Constitution, but it is beyond comprehension as to what hurdles they are facing in amending the Constitution. They should go ahead; the ANP will never oppose such amendments in the Constitution. As far as other reforms are concerned, the ANP was not consulted; so we don’t espouse them and the government must necessarily talk to us on that.

TNS: Do you think extending the Political Parties Act to Fata will initiate political activities in the area?

HMA: If this step had been taken 20 years ago then it would be just, and if they had been given such rights at the time, the tribal people would not have taken to extremism as there would be a political division. Now, if the government is giving them such a liberty, it has to ensure equal rights.

Why is the government reluctant to introduce the judicial system of the settled areas in Fata? If it believes the present judicial system is slow and has flaws, the government should promulgate Nizam-e-Adl Regulation in Fata which has recently been introduced in Provincially Administered Tribal Areas (Pata). The government should devolve the powers of lawmaking for Fata and Pata to the NWFP government.

Secondly, the question arises, can any political party hold political gatherings in the entire tribal areas in the present situation? Politicians can’t hold rallies even in the settled areas, let alone Fata.

TNS: The committee formed for introducing the reforms says they consulted tribespeople who were against the presence of police and judicial system in Fata. Why did ANP put stress on it?

HMA: Who did the committee talk to? They consulted the people who were brought by the political administration. The tribesmen are helpless people; first, they were under the control of the political agent and now they are under the influence of the Taliban. Both (the political administration as well as the Taliban) resist change because it does not favour them. The committee should have consulted the educated tribesmen based in settled areas as they would have expressed themselves without any fear.

TNS: Don’t you think a referendum on the issue could be a solution to the problems?

HMA: No, in the Constitution of Pakistan referendum is for the entire Pakistan and not for a single province or part of the country. Now, how can a person in Punjab or Sindh decide the fate of the people of Fata through a referendum?

Justice Mian Muhammad Ajmal, a retired judge of the Supreme Court of Pakistan and former Chief Justice of Peshawar High Court, has spent the last four years in trying to bring amendments to the Frontier Crimes Regulation 1901, or the FCR as the tough British-era law is commonly known. Finally it seems the PPP-led federal government has agreed to implement the reforms recommended by him and his committee.

Justice (retd) Mian Ajmal was chairman of the FCR Reforms Committee that was constituted in April 2005 by the then NWFP Governor Commander (retd) Khalilur Rahman. The committee comprised a member of the parliament from the Federally Administered Tribal Areas (FATA), tribal elders, serving and retired civil servants, lawyers and a journalist. All of them voluntarily performed the assigned task. They held several meetings to debate each of its 64 sections spread over VII chapters. They paid visits to the tribal areas to attend town-hall style meetings attended by people from all walks of life and seek their views on the FCR. The issue was also discussed with tribal parliamentarians and other politicians, lawyers, members of the intelligentsia and experts.

The committee presented its recommendations to the government but the next Governor of NWFP, Lt Gen (retd) Ali Mohammad Jan Aurakzai, wasn’t interested in amending the FCR. Besides, the insecurity caused by militancy in the tribal areas and the military operations against Taliban militants had changed the situation and amending the FCR had by then become a lesser priority.

The subsequent NWFP Governor, Owais Ahmad Ghani, showed renewed interest in the recommendations of the FCR Reforms Committee. After the 2008 general elections, the newly elected government of the PPP and its allies took up the issue and a cabinet committee was formed under the chairmanship of the then federal law minister Farooq Naek to consider the amendments proposed by the FCR Reforms Committee. The federal cabinet committee had two federal ministers Najmuddin Khan of the PPP and Hamidullah Jan Afridi, an independent tribal MNA, and several members of parliament including Zafar Beg Bhittani, Akhundzada Chitan, Rahmatullah Kakar, etc.

Justice (retd) Mian Ajmal, who served as law minister in NWFP in the caretaker government in 2007-2008 prior to the February 2008 general elections, said he assisted the cabinet committee in finalising the recommendations for reforming the FCR. "I can say that 98 per cent of the recommendations made by the FCR Reforms Committee were accepted by the cabinet committee. Only a few minor amendments were made in the FCR 1901 that was renamed as FATA Regulation 2008," he told TNS.

He hoped the amended FATA Regulation 2008 would be notified in the next few days and then implemented in the tribal areas.

Reminding that all powers regarding FATA vested with the President under Article 247 of the Constitution of Pakistan, Justice (retd) Mian Ajmal said neither the parliament nor the judiciary had any authority to bring changes in the tribal areas.

He also said that constitutional amendments would be needed while undertaking major political and judicial changes in the status of FATA. However, he added, President Asif Ali Zardari using his powers had extended the Political Parties Act to FATA, thereby legalising political activities in the tribal areas. He felt this was apparently done due to the pressure exerted by the Awami National Party (ANP), which is an ally and a coalition partner of the PPP in the centre and NWFP, Sindh and Balochistan.

It seems Justice (retd) Mian Ajmal’s task is now finished. He never had a paid job over the past four years while chairing the FCR Reforms Committee and then assisting the Farooq Naek-led cabinet committee in fine-tuning the amendments in the FCR. It would be now up to the government to implement the proposed reforms as outlined in the FATA Regulation 2008.

While agreeing that insecurity in the tribal areas could hamper implementation of the new regulation, Justice (retd) Mian Ajmal opined that a beginning had been made to amend the FCR in keeping with the aspirations of the tribal people.

He further said the amendments were aimed at improving the legal and human rights of the tribespeople and curtailing the authority of the bureaucrats running the affairs of FATA.

Habibullah Khan, Additional Chief Secretary, FATA Secretariat, rubbishes the rumour that bureaucracy, especially the political administration, is creating hurdles in the way of the implementation of the FCR reforms, insisting that the amendments will lead to political, social, economic and administrative changes in the underdeveloped Federally Administered Tribal Areas (FATA).

The bureaucrats and other government functionaries are bound to carry out the government’s decisions, adds Habibullah Khan, who has served as a political agent in South Waziristan, Mohmand and Khyber agencies, besides being deputy commissioner, DCO of different districts of the Frontier province prior to his appointment as ACS, Fata secretariat.

Having a vast experience of administration in tribal areas and a sound knowledge of tribal customs and traditions, Habibullah Khan believes the amendments in the FCR "were imminent, because of the emergence of demographic, economic, political, educational and social changes in Fata. Drastic changes occurred in the tribal areas bordering Afghanistan ever since the Russian invasion of the neighbouring country and, later, the 9/11. The strong fibre of tribal society that depends mainly on kin-clan relations, was weakened with the emergence of the educated class, moneyed people, jehad culture, foreign interests in tribal areas, and independent media".

Giving the background of the FCR-1901, he says, these laws are mainly focused on matters that interest the government whereas disputes among tribes and tribesmen are to be resolved in tribal tradition. It was aimed to protect roads and government buildings, to ensure a safe and secure supply line in Fata and to not protect anti-state elements in the area.

About the prolonged delay in the amendments in the FCR, he says, there is no replacement of the existing system and laws in case it was abolished. "The tribesmen are not ready to accept at least the current police and patwari system, operating in the settled districts of the country.

"Even the people from tribal areas do not want to lose the status of tribesmen in order to avail the perks and incentives in government jobs and educational institutions," he says, adding that they want to have the cake and eat it, too.

This could be the harbinger of a disaster in the tribal areas, a repetition of Malakand where no homework was done prior to abolishing the old system, and where various ‘experiments’ have been carried out since 1969 resulting in a political chaos. Likewise, Fata had no judicial or administrative infrastructure to implement these laws.

"I must give credit to the present government which took practical steps for the implementation of the recommendations presented by the FCR reforms committee, headed by Justice (retd) Mian Ajmal," he says when asked who to attribute the current step to.

"If the rulers wanted to delay they could have done it very easily by taking another couple of years reconsidering the issue. Instead, the present government reviewed the already available recommendations and research work done by the FCR reforms committee and other institutions."

About objections and opposition to the amendments in the FCR, he says, some quarters may object to the amendments in the FCR on the grounds that it may not resolve the core issue of militancy. However, there is a need to revisit issues like economic development, administrative and judicial system and government intervention or non-intervention in the tribal affairs. "Amendments in the FCR are an important step towards a big change in the tribal areas," he adds.

In his view, the most important reforms in the FCR are: political authorities have been bound to provide written reasons for every judicial actions they have taken; every arrested person has to be produced before the judicial officer within 24 hours; every arrested person has the right of bail while a tribal jirga is bound to give its verdict within 90 days.

Prominent amendments in the FCR include the extension of the Political Parties Act of 2002 to the tribal areas, curtailing the powers of arbitrary arrest and detention without the right to bail, exclusion of women and children below 16 years of age under the Collective Responsibility Clause of the FCR; setting up the Fata Tribunal with powers similar to those of the high courts and audit of the funds received and disbursed by political agents by the Auditor General of Pakistan.