FATA: CHALLENGES AND RESPONSES

By:
DR FAQIR HUSSAIN,
Secretary,
Law & Justice Commission of Pakistan

History and Demography:

The Federally Administered Tribal Areas (FATA) has a long history of enduring invasions from Central Asia, Mediterranean and Asia. Its rugged terrain and inhospitable environment, coupled with the fiercely independent nature of the inhabitants, often led to resistance to the invading hordes. At times though, they joined the invaders on their conquest of states and principalities in the Indian Subcontinent. The area twice became battleground of the major or super power conflict; once, in the 19th century in the conflict known as “Great Game” between the imperial powers i.e. Great Britain and Czarist Russia; and again, in 1979, in the super-power conflict between USA and USSR, following the Russian occupation of Afghanistan. In the first conflict, the tribal belt saw some action but mainly served as buffer zone between the two imperial powers. In the second conflict, this territory served as training ground and launching pad for the Mujahideen’s (Muslim fighters) hostile actions against the Russian army. The US-dominated coalition, comprising the capitalist block, made this region as their military headquarters against the Russian occupation army. The ensuing “Super Game” transformed the region into a hotbed of Islamic insurgency and militancy. To fight the Russians, local and Afghan Mujahideen were recruited and foreign elements brought in to join the Jihad (holy war). The fighters were given training and armed with most sophisticated weapons. Following the withdrawal of Russian troops from Afghanistan, all foreign assistance terminated and the Mujahideen were left to their own devices, to find new causes to fight for. The 9/11 incident and subsequent American intervention in Afghanistan, followed by stationing of ISAF and NATO forces in that land, turned the heat on the Mujahideen as well as their hosts and collaborators i.e. local Talibans in the tribal belt. The Pakistan army also got sucked into the volatile situation, and by carrying operations against militants, caused collateral damage in the shape of civilian casualties and destruction of property. This was contrary to the 1947 accords with the tribal people to respect their autonomy and non-interference in tribal affairs. The situation was further complicated by the continuous assaults of ISAF/NATO forces inside the tribal belt. It transformed the geo-political situation and social environment of the region.

The region has a peculiar system of administration, whereunder the people are governed through their local chieftains called Maliks, through financial strings controlled by Federal Government and exercised by its official called Political Agent. This system has been in vogue for more than a century. In 1901, the entire northwestern frontier region of British-India was placed under the rule of the Governor-General of India, who governed it through the Chief Commissioner of the Punjab Province. The region, called, North West Frontier Province (NWFP) was divided into “settled areas” or Districts and “tribal areas” or Agencies with differing legal/administrative structures. The “settled areas” had a system of administration as elsewhere in India, whereas the “tribal areas” were controlled under an indirect system of governance, wherein a government official i.e. Political Agent would rule through the local tribal chiefs (Maliks). This way, the tribes enjoyed their autonomy and cooperated with the Government in return for financial incentives. The arrangements however were not perfect and during the course of colonial occupation, the British troops were often embroiled in repeated battles with various tribes in the areas.

This system of administration continued even after independence. The Indian Independence Act 1947 put an end to the agreements reached between the Government of British-India and tribal Maliks. It means that technically the region became independent. However, soon, fresh agreements were made by the Federal Government with the Maliks, whereby the tribes acceded to Pakistan and pledged to maintain loyalty, in return for financial incentives. The agreements were patterned on the earlier treaties with the Colonial Power. Later on, in 1951-52, the agreements were revised to grant the Government greater control in tribal affairs.

The successive constitutions (1956, 1962 and 1973) of Pakistan retained this colonial system of administration. Under the 1973 Constitution, the overall administrative and political control of the FATA lies with the President, exercised through the Governor of NWFP, as his agent. On the ground, control is exercised by the Political Agent, vested with wide powers and given funds to secure loyalty of influential elements in the region. This is how the Maliki system was developed for indirect exercise of control over the population through their local chiefs, who act as intermediaries between the local inhabitants and Government. This way, the tribal belt is allowed to retain their semi-autonomous status. The system is given legal cover through the Frontier Crimes Regulation (FCR) 1901. Closer scrutiny of the agreements between the tribal chiefs and the Government of Pakistan would reveal that such pacts do not envisage any base for or deployment of troops in the region. The Maliks merely promised loyalty and allegiance to the Government, in return for financial consideration.

FATA covers an area of 27220 km, which is roughly about 3% of Pakistan’s total territory. Its population (as per 1998 census) is recorded as 3.138 million, which forms 2.4% of the country’s total population. The area has a very low literacy rate i.e. merely 17.42% (29.5% males and 3% females) as compared to the national literacy rate of 56%.

The region consists of 7 “Agencies”, namely, Khyber, Mohmand, Bajaur, Kurram, Orakzai, North Wazirstan and South Wazirstan and 6 “Frontier Regions” adjoining the Districts of Peshawar, Kohat, Bannu, Lukky Murwat, Tank and Dera-Ismail Khan. The Khyber Agency was established in 1879, Kurram Agency in 1892, and North and South Wazirstan in 1885. The Mohmand Agency was created in 1951 followed by Bajaur and Orakzai in 1973.

Constitutional Status:

Under the Constitution, FATA forms an integral part of Pakistan. Article 1 clearly mentions it as part of the national territory. Article 145 empowers the President to issue directions to the Governor for discharge of functions as his agent in the tribal areas. Article 246 enumerates the Federal Agencies/Regions and Article 247 prescribes the manner and method of their administration. The later Article states that the executive authority of the Federation extends to FATA, to be administered by the Governor, subject to President’s directions. Laws and regulations can be extended and new ones formulated for the region. The laws passed by the Parliament do not automatically apply to FATA, however, on the President’s direction, these can be made applicable to it. Uptill now, more than 100 laws have been extended to FATA. Subject to ascertaining the views of the people of the area, as represented in tribal Jirga, the President can end the tribal status of any particular agency or entire tribal territory. The Governor on the direction of the President administers the area. A large number of civil, criminal, fiscal and electoral laws have been extended to FATA. Article 247 however, debars the jurisdiction of Supreme Court and High Court to the tribal belt, except when the Parliament so provides. However, this prohibition does not affect the jurisdiction of the Supreme Court and High Court, exercised in relation to tribal areas immediately before the commencing day of the Constitution. Under Article 142(d), the Parliament has exclusive power to make laws with respect to matters not enumerated in any of the Legislative Lists for such areas in the federation as are not included in any province. Further, Article 258 states that until Parliament by law otherwise provides, the President can make necessary provisions for peace and good governance of any part of Pakistan, not forming part of a province.

As per the Federal Government Rules of Business, the responsibility for the overall administrative and political control of FATA falls under the Federal Ministry of States and Frontier Regions (SAFRON). The SAFRON Ministry, accountable to the Prime Minister, however, performs limited role of serving as conduit for transfer of funds to the area. Otherwise, it is virtually irrelevant in policy formulation or its implementation in the region. The ultimate executive authority rests with the Governor, in his capacity as agent of the President. Previously, the Governor exercised his authority through the provincial bureaucracy, however, as of the year 2002, a separate Secretariat i.e. FATA Secretariat has been established for managing the affairs of the region. A Political Agent, appointed by the Federal Government, runs the administration in each Agency and an Assistant Political Agent heads each sub-division in the Agency. The Political Agent performs several functions: he is an executive officer, magistrate and revenue collector. He oversees the development projects, maintains law and order and ensures peace in the area through the force of Khassadars, Levies and other para-military forces.

Political System & Governance:

The Constitution provides for representation of FATA in the Parliament. Articles 51 and 59 reserves 12 seats in the National Assembly (NA) and 8 seats in the Senate for the region. The seats in the NA are filled through direct system of election, whereas those in the Senate through indirect system, with NA members forming Electoral College for the Senate membership. Before 1996, a limited electoral college (some 37000 Maliks) elected the NA members. The Government then introduced adult franchised in the tribal belt, thus the 1997 elections, followed by the subsequent 2002 and 2008 elections, were held on the basis of adult franchise. Almost all the major political parties have their branches in the region; however, elections are held on non-party basis, because the Political Parties Order 2002 has not been extended to the region.

In the year 2004, the Government established Agency Councils as local government institutions in the region to facilitate the participation of people in governance and development schemes. The local government planned for the tribal areas however differs from the settled areas, in as much as; it lacks the 3-tiered structure i.e. Union Administration, Tehsil Government and District Government. FATA has a single tier of local government structure. 70% of the Agency councillors are elected whereas 30% seats are reserved for Maliks, Ulema, scholars, technocrats, women and minority. The FATA Secretariat on the recommendation of the Political Agent nominates them. Only 19 seats are reserved for women. The councillors have not been provided with powers equal to their counterparts in the settled areas, which reduce their effectiveness to address the issues of law-and-order, poverty, human rights and socio-economic development. Further, the Political Agent of each Agency is made the Chairman of the Agency Council and the Assistant Director of Local Government & Rural Development serves as a Secretary of the Council. The induction of officials at higher positions considerably reduces the powers and capacity of local government institutions to deliver.

Legal System:

Even though FATA clearly forms part and parcel of the national territory, the Federal and Provincial laws do not automatically apply to the region. The Governor, subject to the President’s direction, can make laws applicable to the region. And again, whereas the Constitution guarantees fundamental rights and freedoms to citizens, these rights are practically denied to the tribesmen on account of the bar on the jurisdiction of the superior courts to the area. It means that whereas the fundamental rights are available to the resident of FATA, there, enforcement however is denied to them. The legal instrument to govern and administer the region is the Frontier Crimes Regulation (FCR) 1901. The FCR provides for a system of collective territorial responsibility and collective punishments. It empowers the Political Agent to punish an entire tribe or clan for crime committed on its territory by arresting individuals, seizing or demolishing their property and imposing fines on them. Dispute-resolution is through Jirga (council of elders). The Jirga findings are however not binding on the Political Agent.

Challenges to FCR

The operation of FCR has not been smooth. There were challenges. It frequently came under review from the courts on the ground of repugnancy to fundamental rights, guaranteed by the Constitution. Cases started coming to courts soon after the promulgation of 1956 Constitution, which contained fundamental rights for citizens. Successive judgments of the superior courts declared various provisions of the law void, these being inconsistent with the fundamental rights.  Such judgments were Dosso v. State (PLD 1957 Quetta 9), Toti Khan v. DM, Sibi (PLD 1957 Quetta 1), Abdul Akbar Khan v. DM, Peshawar (PLD 1957 Pesh 100), Abdul Baqi v. Superintendent, Central Prisons, Match (PLD 1957 Karachi 694), Khair Muhammad Khan v. Government of WP (PLD 1956 Lahore 668) and Malik Muhammad Usman v. State (PLD 1965 Lahore 229). Justice A. R. Cornilius in the case of Sumunder v. State (PLD 1954 FC 228) called the FCR proceedings as “obnoxious to all recognised modern principles governing the dispensation of justice”. The Court observed that in the circumstances, it is impossible to preserve public confidence in the justness of the decision made under the FCR.

In the given scenario, it was difficult to visualise as to how may the FCR survive the judicial scrutiny and be retained on the statute book, side by side with the fundamental rights. The judicial challenge subsided though, with the Supreme Court verdict in the case of State v. Dosso (PLD 1958 SC 533), which justified the abrogation of the 1956 Constitution on the doctrine of “revolutionary legality”. The repugnancy of FCR therefore could no longer be tested vis-a-vis the Constitution. Later, the constitutional dispensation revived, however in the subsequent years, no serious challenge has ever been posed to FCR, hence its continuation.

It may be noted that the High Court in the case of Dosso v State (PLD 1957 Quetta 9) exercised jurisdiction (under Article 178 of the 1956 Constitution) despite the ouster clause. The Court did so on the ground that tribal areas are included within the territory of Pakistan and the citizens residing therein are entitled to the benefit of fundamental rights, guaranteed by the Constitution. This is how the Court struck down certain provisions of the FCR, which were found to be repugnant to Article 5 (equality before the law and equal protection of law) of the Constitution. The Peshawar High Court in the case of Mohammad Irshad v Assistant Commissioner, Swat (PLD 1990 Pesh 51) struck down the PATA Criminal Laws (Special Provisions) Regulation I of 1975 and PATA Civil Procedure (Special Provisions) Regulation II of 1975, as these were found to be violative of article 25 of the Constitution. A stunning blow was delivered by the Supreme Court to the notion of special areas, deprived of the benefits of the Constitution, in the case of Al-Jehad Trust v Federation of Pakistan (1999 SCMR 1379), wherein the Court assumed jurisdiction under Article 184 (3) on a petition filed before it, seeking the enforcement of fundamental rights of the people of Northern Areas. It may be clarified that the Constitution makes no mention of Northern Areas. {Article 257 refers to Jammu & Kashmir only by stating that when the people of State of Jammu & Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of people of that State. As per judgment of the Supreme Court of A J & K in the case of Federation of Pakistan v Malik Mohammad Miskeen (PLD 1995 SC AJ&K 1), the Northern Areas are not part of Azad Jammu & Kashmir territory}. The Supreme Court nevertheless assumed jurisdiction, the matter being of public importance relating to enforcement of fundamental rights. The Court ruled that the people of Northern Areas are citizens of Pakistan for all intents and purposes and like other citizens have the right to invoke any of the fundamental rights and liable to pay taxes and other levies, competently imposed. The Court observed that the people are entitled to participate in the governance of that area and should have an independent judiciary to enforce, inter alia, the fundamental rights. It accordingly directed the Federal Government to initiate appropriate legislative/administrative measures to enable the people of Northern Areas to be governed through their chosen representatives and to have access to justice through an independent judiciary, inter alia, for enforcement of their fundamental rights. The Government subsequently enforced the direction. Earlier on also, the Supreme Court had in the case of Superintendent of Land Customs, Torkhem v Zewar Khan (PLD 1969 SC 485) ruled that tribal areas were legally part of the territory of Pakistan as several laws including Customs Act, were applicable to it. The Court observed that both under the international law as well as the municipal law, the tribal territories are part and parcel of Pakistan, as are duly recognised by foreign states.

Reference to international law is important in the sense that international human rights instruments, to which Pakistan is a signatory, are binding on the State in respect of all regions and all people. Therefore, it is incumbent upon the State to take necessary constitutional, legislative or administrative measures to extend international human rights norms/principles to all the people in the State, including the FATA.

Judging by the standards of international human rights principles, the norms practiced in civilised states and the fundament rights guaranteed in the Constitution of Pakistan, the FCR fails to meet the test of compatibility. This is so because FCR has a peculiar origin. The British devised it as an instrument of subjugating the tribes and disciplining its inhabitants. It was necessary to establish the writ of the Colonial Authority. In drafting it, the Government relied upon some of the customs and traditions, prevalent in the tribal belt. However, such customs and traditions were twisted to suit the Government plan of protecting favourites and securing convictions of opponents. The selection of Jirga members was therefore left to the executive authority, and the findings of Jirga were not binding. This way, the Executive was made the ultimate authority and final arbiter to initiate trial, prosecute offenders and award punishments. The trial fora including appellate and revision authorities are from amongst the Executive. Consequently, the law contains no concept of an independent/impartial judicial authority or a court of law to follow due process and dispense free and fair justice. This is contrary to the mandate of the Constitution. The very Preamble as well as Article 2-A and 175 of the Constitution provide for an independent judiciary. This vital safeguard is altogether missing from the FCR. All its provisions – substantive as well as procedural – e.g. selection of Jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), the power to blockade hostile or unfriendly tribe (section 21), demolition of and restriction on construction of hamlet, village or tower on frontier (section 31), removal of persons from their places of residence (section 36), manner/method of arrest/detention (section 38 & 39) security for good behaviour (sections 40, 42) imposition/collection of fine (sections 22 - 27) etc, are in violation of the Constitution. This is contrary to Article 8 of the Constitution, which provides that any law or custom or usage having the force of law, in so far as it is inconsistent with the fundamental rights, shall be void. Quite clearly, the provisions of FCR are violative of several articles of the Constitution e.g. Article 4 (right of individual to be dealt-with in accordance with law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention), Article 13 (protection against double jeopardy, self-incrimination), Article 14 (inviolability of dignity of man, prohibition of torture for the purpose extracting evidence), Article 24 (protection of property rights) and Article 25 (equality of citizens).

International human rights principles, judicial norms practiced in civilised states and the Constitution of Pakistan envisage certain basic principles to be present in the criminal justice system. These principles include the presumption of innocence until proven guilty and trial under due process procedure. The safeguards available to citizens are: no arrest or detention without breach of law; when arrested, accused to be informed of the grounds of arrest; the right to consult and be defended by a Counsel of choice, and if the accused is indigent, such Counsel to be provided by the State; production of the detenu before the court within shortest possible time but not exceeding 24 hours of arrest; extension in period of detention subject to remand given by the court; release on bail and the bail bond to be of reasonable amount; release/acquittal of the accused in the event of the Prosecution failing to establish the guilt; right of accused to be treated in accordance with the law and enjoy the protection of law; right against self-incrimination or double jeopardy or retrospective punishment or punishment greater than prescribed by law; right of the accused to produce witnesses in favour and cross-examine witnesses against himself; humane and dignified treatment while in custody, prohibition on use of torture for extracting evidence and prohibition of inhumane, degrading or humiliating treatment or punishment. An essential safeguard is trial by an independent and impartial court of law through due process and free and fair dispensation of justice.

These are, let me stress, the established safeguards practiced in the advanced societies. Many of them regrettably, are missing from the system of criminal justice in vogue in Pakistan. The criminal justice system is confronted with multiple problems and challenges, besides the absence of adequate safeguards for the accused. It is neither expeditious nor economical, and contains major drawbacks for the victim to secure his right or redress of grievance, and the accused to get a fair trial. If the system is still considered better than FCR, then perhaps FCR is the worst form of legislation. FCR is patently contrary to the constitutional norms. The law therefore needs to be reviewed.  Review must however follow detailed study of the ground realities and local traditions. It should reflect the social ethos and aspirations of the people of tribal areas. Perhaps a gradual process of reform of the law may be undertaken. To begin with, some of the draconian provisions in the FCR e.g. seizure/confiscation of property and arrest/detention of an individual without due process, debarring a person in tribal area from entering the settled district (Section 21), removing a person from his residence/locality (Section 36), fines on community for crime committed by individuals (Sections 22, 23), prohibition on erecting village, walled enclosure and their demolition (Sections 31 – 33) etc, should be abolished. Where appropriate, ordinary criminal law may be extended to the tribal area to prevent gap/void in legislation.

Furthermore, the accumulation of executive and judicial functions in a single Authority should be done-away with. Judicial authorities, working under the High Court, should exercise judicial functions at the trial, appeal and revision stages. The High Court can be made the court of ultimate appeal in cases under FCR. The Jirga members should not be selected by the Executive and their findings, on facts of the case, be made binding, except when it is against law, equity or public policy. Meanwhile, a study group comprising experts from different fields and local representatives/professionals may be set up to study the law and prepare an alternative framework. The new system should be practical and practicable. It would help facilitate in removing the grievances of the local population and integration of the tribal belt in the country.

Socio-economic conditions:

FATA is economically a backward region. Some 60 per cent of the population lives below the poverty line. Per-capita income is as little as half of the national per-capita income. The agricultural base is weak due to lack of arable land, mechanised agricultural implements and irrigation system. There exist economically viable resources and mineral deposits including marble, copper, limestone, coal, etc, however, high economic cost coupled with deteriorating law and order situation make exploration or exploitation difficult, if not impossible. There is no banking system and hardly any industry or business activity; consequently, there is huge unemployment in the area. Smuggling of contraband goods including drugs and weapons are the principal commercial activity on which thousands depend for livelihood. Budgetary constraints prevent the requisite amount of funding for good governance, infrastructure development, economic growth; and foreign aid to the region is a difficult to flow because of the security concerns and lack of adequate institutional support or presence of NGOs to facilitate in the socio-economic development projects. The literacy rate is much below the national level. There are scant health facilities and a few medical doctors to provide medical care. Difficult terrain, relative isolation, few natural resources and deteriorating law-and-order situation pose serious challenges to Government. The US and some other countries are favourable to plans for development of FATA. There is a proposal for operationalising the trade routes through the tribal belt as an essential part of regional development strategy. The US also proposed the establishment of Reconstruction Opportunity Zones (ROZs) in the tribal areas on both sides of the Durand Line. It is a useful proposal as regional-integration strategy and counter-terrorism measure. It would help improve the region’s economy and enhance employment opportunities. The plan however would require peace and amity in the region as a precondition and the support of its inhabitants. It would immediately lead to infrastructure development by building roads, improving communication and water/power supply. US have recently pledged $750 million to develop infrastructure, human resources in the ROZs, in order to address the issue of poverty and reverse the trend towards militancy and Talibanisation.

Conclusion:

The continued neglect and maintenance of status quo in the region has wrought untold sorry and suffering for its inhabitants. This way, problems multiplied and crucial issues were ditched. Poverty, illiteracy and bad governance led to alienation of the tribesmen. Denial of fundamental rights including the right to life, liberty, safety, dignity, property and freedom of though, movement, expression and association, left the inhabitants at the mercy of strong and powerful, be it a local chieftain or an obscurantist religious zealot. It furnished an ideal environment for extremism and militancy to take roots. Extremism and militancy are eating into the vitals of the tribal society. FATA is in the eye of a building storm of colossal magnitude. Extremely bad experiences of violation of accords with the people of the region, no State protection of life, liberty, property or honour and denial of justice have led to alienation of masses. The people see no hope of the situation improving. This state of affairs is a sure recipe for disaster. The situation has been successfully exploited by obscurantist elements in the shape of Talibanisation of the region. It is shameful for a State to fail its inhabitants in terms of ensuring their safety, property and giving them justice. Non-action to remove grievances and bad governance has caused enormous damage. The people are losing hope for any change for the better. Serious damage has been caused but perhaps there is still a lingering hope to reverse the process. It is primarily on account of the fiercely independent nature of the people and their courage to resist the pressure towards creating an obscurantist society.

Notwithstanding the difficulties, the people have and continue to demonstrate tremendous vitality and aspire for change and progress. Majority of the people in this turbulent region are not influenced by the phenomenon of extremism. According to a recent survey conducted by the Islamabad based Centre for Research and Security Studies (CRSS), 95% of the inhabitants of FATA stand for the girl education, whereas only 4% oppose it. 92% opined that Taliban do not represent true Islam and 91% consider the Taliban-way as the wrong-way, indeed just 7% consider it the right-way. Similarly, 86% of the respondents disapprove of the smashing of CD shops by the Talibans and only 13 per cent support the action. Again, tribal people are not in favour of Talibanisation of their society, they just oppose foreign intervention and military operation in the region. The survey showed that 77% people do not welcome the deployment of army in their region. 84% of the respondents said that the religio-political parties are not the true representatives of the FATA people. The survey clearly brings out the common perception that the general public does not favour the Talibanisation of their region. Like people elsewhere in the country, they aspire for personal safety, human rights, socio-economic uplift and improvement in the quality of life of the ordinary man.

As stated before, the FATA simmering has been largely on account of its criminal neglect and emphasis on maintenance of status quo. There has never been any serious effort at reform and to bring about economic, social and political integration of the region into the mainstream. The people were left to their own devices and suffered humiliation at the hands of Government functionaries and exploitation at the hands of chieftains, religious forces and criminal elements. There is need for coherent and practical framework to address the basic needs of the people, through provisions of infrastructure facilities and economic activity to ensure sustainable livelihood and reduce poverty. There is also need for political and legal reform to extend the benefits of law and good governance to the people. The following recommendations are being made:

Recommendations:

  1. There is a need to review the dual system of administration, one for settled areas and another for tribal region. It may be examined as to whether the mere extension of the settled areas’ system of governance to the tribal belt would help improve the situation in that region. Such experiment failed to produce good results in Swat, where the extension of an inefficient/corrupt system of administration and dispensation of justice merely added to the miseries of the common man. Finding little comfort from public officials or elected representatives, the inhabitants were attracted to the medieval system of rough justice of the Talibans. The blunder should not be repeated in the tribal belt. An appropriate system must therefore be devised for the region after consultation with the relevant stakeholders including tribesmen, Maliks, elected representatives and government officials.
  2. It is unclear as to why the people of FATA, though citizens of Pakistan are denied the benefits of law including enjoyment of fundamental rights/freedoms, guaranteed by the Constitution. It is therefore desirable that the jurisdiction of High Court and Supreme Court is extended to the region.
  3. FCR, an old law and drafted on the principle of denial of due process, judicial independence and impartial dispensation of justice has little scope for reform to meet the present-day requirements of a civilised society. Therefore, ultimately a new and modern legal instrument has to be crafted. Meanwhile however, the law should be amended to do-away with some of its draconian provisions like arrest/detention without charge, punishment without due process, seizure/confiscation of property, blockade of hostile or unfriendly tribe, demolition of and restriction on construction near frontier, fines on community, removal of persons from their places of residence, manner/method of arrest, security for good behaviour, imposition/collection of fine, recovery of fine from relatives, etc.
  4. The Jirga selection should be by parties to the dispute. The political Agent should have no role in the matter. Further, the Jirga findings should be binding, except when against the law or public policy. One Jirga should not be substituted by another, except with consent of parties.
  5. The executive and judicial powers of the Political Agent should be separated. An independent and impartial judicial tribunal should conduct trials, whose orders/decisions are reviewed/appealed against before a higher judicial forum including High Court and Supreme Court.
  6. The President has the power to terminate the tribal status of an Agency or entire tribal area, subject to ascertainment of views of its inhabitants as expressed in Jirga. It may however be examined as to whether FATA be made into a separate administrative zone or merged into the NWFP. In case of the later option, the people of FATA have to given representation in the Provincial Assembly.
  7. The government needs to adopt a comprehensive approach to integrate FATA in the mainstream. Such approach must encompass security, governance and development. Indeed, it is the State failure to extend its control over and provide good governance to the citizens of FATA, which has enabled the militants to mount a powerful challenge. There is a need for establishing the writ of Government. The duality in approach in the shape of appeasement to warlords, religious extremists and militants should be discarded. The Government should take broad political and economic measures to curb militancy and extremism in the tribal belt.

8.      The crises of governance is likely to persist until the introduction of modern democratic political institutions and an end to the colonial-era administrative framework, so that the people have active participation in governance. The Political Parties Order 2002 should be extended to the area. The Local Government Ordinance 2002 should also be enforced in its entirety, with the councillors elected through adult franchise.

9.      Greater investment be made in health and education sectors to provide these basic necessities to the people.

10.  Government should establish industrial zones and create employment opportunities. It should strive and create conducive environment for investment and employment opportunities in the region.

11.  People should be given skills training for productivity and enhanced income. There is a need for developing human resources by investing in education including educational training schools and        technical colleges.

12.  Trade and commerce should be encouraged and the trade in drugs and firearms should be curbed.

All this and much more needs to be done but it should be done in a planned way and consistent manner, subject to consultation with the people. Changes/improvements should be introduced under a phased plan. There must be gradual changes in the overall system of governance so as to enabling the people to get use to modern system of government. Reform process should be such that there is continuity and change, taking into account legal preferences and choices for improving governance.

Bibliography:

1.              Ishfaq Ali, Laws Extended to the Tribal Areas with Jirga Laws (2nd  ed) New Fine Printers, Peshawar.

2.              Masud Ahmad’s article, Constitutional Position of the Tribal Areas of West Pakistan, published in the PLD 1967.

3.              Abdul Ghafoor Chaudhary, The Law of Expediency (2nd ed, 1965) Hinna Publications, Mozang Road, Lahore.

4.              Pervaiz Iqbal Cheema and Maqsudul Hasan Nuri, Tribal Areas of Pakistan: Challenges and Responses, Islamabad Policy Research Institute.

5.       Election Commission of Pakistan, Laws General Election 2002 (Vol. I)

6.       Dr Noor ul Haq, Dr Rashid Ahmed Khan and Dr Maqsdul Hasan Nuri, Federally Administered Tribal Areas of Pakistan, Islamabad Policy Research Institute.

7.       Robert Nichols, Colonial Reports on Pakistan’s Frontier Tribal Areas, Oxford University Press, Karachi.

8.       Naveed Ahmad Shinwari, Understanding FATA, Community         Appraisal & Motivation Programme (CAMP).

9.       International Crisis Group, (Report No. 86) Building Judicial Independence in Pakistan, 10 November 2004.

10.     Statistics Development Department of NWFP, NWFP and FATA at a Glance 2007.

11.     Teepu Mahabat Khan, The Tribal Areas of Pakistan, Sange-e-Meel Publications, Lahore.

12.     FATA Sustainable Development Plan (2006-2015) of the Government of Pakistan.

13.     International Crisis Group (Report No. 125) Pakistan’s Tribal Areas: Appeasing the Militants, 11 December 2006

14.     Mumtaz A. Bangash, FATA-Reforms Committee Report on the Introduction of the Local Government Plan 2000 in FATA.

15.     Daniel Markey, Securing Pakistan’s Tribal Belt (Web Report         Council on Foreign Relations).

16.     Federally Administered Tribal Areas, Wikipedia – on line  encyclopaedia.http://en.wikipedia.org/wiki/Federally_Administered_Tribal_Areas

17.     USAID/Pakistan:http:www.usaid.gov/pk/mission/news/fata.htm

18.     FATA (Federally Administered Tribal Areas) http://fata.gov.pk/subpages/history.php

19.     Dawn, Islamabad dated 1st August 2008.

20.     Working Paper for Governor’s Meeting on FCR at Governor House  (2008).

21.        Abdul Karim Masud, Advocate, FCR – Amendments as FATA Regulation 2008.