The promulgation of a presidential ordinance for the Frontier Crimes Regulation reforms on August 12, 2011 was not a small event in the 64 years long history of the Federally Administered Tribal Areas.
The reforms package came after years of protracted deliberations by legal experts and a relentless struggle by political workers of Fata in order to give FCR the credence of acceptability and pave the way for bringing the people of Fata into the main stream by securing their legal, constitutional and basic rights.
The package also included the extension of Political Parties Act 2002, which was not only warmly welcomed by a section of Fata population but with an urge and demand for speedier changes in the century-old set up of British-era regulations.
With the overarching structure of FCR and its legal concepts remaining intact, some changes introduced in it included protection of women, children under the age of 16 and tribesmen above the age of 65 from arrests and detention under the Collective Territorial Responsibility clause; prohibition against arresting an entire tribe under the Collective Territorial Responsibility section; appellate authority power to review and revise decisions and orders; provision for independent appeals process; strengthening the newly established Fata Tribunal; reference to ‘Qaumi Jirga’ or council of elders; fixed time limits for the disposal of cases; power to transfer cases to the assistant political agent; concept of bail; introduction of jail inspections; fines on communities in the case of murder; acceptance of local customs and traditions; check on arbitrary powers to arrest by the political administration; compensation for false persecutions, and audit of the political agent funds by the Auditor General of Pakistan.
Almost three and a half years have passed since the promulgation of the ordinance but its complete implementation with regard to changes in FCR has been awaited by Fata residents.
“We do not see any practical changes on the ground in any part of Fata as FCR still exist in its true form, while the reforms seem more symbolic and cosmetic than real,” said Sahibzada Haroon Rashid, the Jamaat-i-Islami general secretary for Fata.
He said the people of Fata were denied speedy justice, while disposal of civil cases was also abysmally slow and frustrating.
“The political administration is neither willing to surrender its arbitrary powers nor do they allow any audit of expenditure though it’s enshrined in the reforms package,” he lamented.
Sahibzada Haroon belongs to Bajaur Agency and remained Member of the National Assembly after winning the 2002 general elections as an independent candidate.
However, a longtime campaigner for changes in the FCR, Bazaar Gul Afridi of Bara tehsil of Khyber Agency have a different point of view.
He firmly believe after the promulgation of the Action in Aid to Civil Powers Regulation in April 2011, the political administrations in Fata were deprived of all their administrative, judicial and executive powers.
“Under the prevailing circumstances and prevailing situation in most parts of tribal areas, the political administration has become totally ineffective and deprived of all their powers as most of these powers are now exercised by military officials thanks to Action in Aid to Civil Powers Regulation,” he insisted.
“In such circumstances, the implementation of the reforms package is a mere dream of the people of Fata.”
Bazaar Gul Afridi was also very critical of the role of mainstream political parties and insisted they all had failed to educate the people of Fata about the benefits of the reforms package and the advantages of political freedom.
“It’s appalling on part of the political parties that a number of their candidates opted to contest the May 2013 general elections as independent candidates instead of using their party platforms as they felt threatened from certain militant groups,” he said.
However, Sahibzada Haroon Rashid insisted that political parties were politely denied permission by security officials to take part in elections on security grounds as a number of Fata areas were not believed to be safe for political activities and were declared no go areas.
Sheikh Janzada of Awami National Party is also not happy with the role of political parties in strongly advocating the complete and speedy implementation of the reforms package.
Himself a longtime political activists, this resident of Bajaur Agency believes that most political parties are in a state of indecision as they have miserably failed to devise a clear-cut strategy to bring Fata into the mainstream national politics and rid the region of the obsolete set of cruel and inhuman regulations.
“Successive governments in Pakistan, both military and democratic, intentionally kept Fata deprived of its legal and constitutional rights and thus, holding the people of Fata hostage to serve own ends,” he said.
He demanded that it is time that Fata is opened to reforms to grant all basic human rights to tribesmen.
Janzada also suggested that the government hold local body elections in Fata without delay to free the region from the influence of political administration and handpicked pro-administration tribal elders.
“Only such an arrangement could ensure prompt implementation of all reforms and flourishing of political parties,” he said.
Coming to the rescue of political parties and advocating their weak role in educating people of Fata about the advantages of political freedom, Barkat Khan Afridi, a social activist from Jamrud tehsil of Khyber Agency, argued that the prevailing law and order situation was not conducive for political maneuvering.
‘During the current state of war in most parts of Fata and delicate law and order situation in others, it is simply impossible for any political party or political leader to freely work in the region,” he said, adding that a conducive environment was not yet available to political parties to reach out to the people in tribal areas.
Barkat Khan was also of the opinion that political administration and the privileged class of pro-government elders was also a huge hurdle to the smooth implementation of FCR reforms package.
“It is hard to believe that such people will easily step back, abdicate their perks and privileges, and pave the way for reforming the existing system,” he said.
Naveed Ahmad Shinwari of a nongovernmental organisation working on issues pertaining to Fata believed that perhaps, the PPP government had miscalculated the timing of the reforms package as benefits of such administrative steps could not be reaped in a hostile environment.
Author of ‘Understanding Fata’, a comprehensive report about issues confronted by the people of Fata, Shinwari argued that no reforms package could truly be put into practice in a state of lawlessness.
“We had and still have military operations going on in parts of Fata. We also have over one and half million people displaced from their homes due to insecurity and therefore, it is almost impossible that a people-friendly policy is implemented in the tribal areas under such adverse circumstances,” he said.
About the role of political parties, the writer said most political parties lacked proper organisational structure in Fata and therefore, they were unable to pressure the authorities for a change in the existing rotten system.
“All mainstream political parties need to organise and strengthen their local units in Fata, expand their vote bank and include the main issues of Fata in their party manifestos,” he said.
Fata Lawyers Forum president Ejaz Momand firmly believed as long as Article 247 of the Constitution remained in effect, no reform package for Fata would produce positive results.
“The country’s superior courts have already given their verdicts against Article 247. Also, PPP has moved a bill against it in the Senate but we still are awaiting a consensus among all mainstream political parties as well as members of parliament from tribal areas,” he said.
The Fata Lawyers Forum president said under the said Article of the Constitution, only the country’s president could change or repeal any law for Fata, while MNAs from the region were barred from making any legislation for their own areas.
The August 2011 reforms package also provided for the establishment of a Fata tribunal as an appellate court against the unjust rulings of the political administration.
However, Ejaz Momand said the creation of such a tribunal was against the very essence of the Constitution.
“The tribunal itself will be illegal, illogic and unconstitutional.”
He said instead of providing a platform for genuine redressal of the legal grievances of people of Fata, the government made temporary arrangements on ad hoc basis.
The Fata Lawyers Forum president said the new tribunal had no legal authority to implement its decisions nor was it the contempt authority.
“The tenure of the tribunal will expire in January 2015. We have already challenged its existence in the Peshawar High Court as all three members of the tribunal were not very well versed with matters pertaining to Fata,” he said.
Ejaz Momand said in order to ensure provision of fair and speedy justice to the people of Fata and protection of the people’s basic human rights, the jurisdiction of superior courts should be immediately extended to all tribal regions.
Published in Dawn, January 6th, 2015