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The new deal for Fata

August 17, 2011

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ALL the three key components of the Fata package unveiled last week are rich in promise, but success in securing equally rich performance will test to the utmost the skill, ingenuity and patience of the implementation agencies.

The least controversial part of the deal is apparently the extension of the Political Parties Order to the Federally Administered Tribal Areas. All shades of political opinion have welcomed the measure. Many of them had been demanding it for long. Political parties already have some presence in Fata but it is only now that they can operate as completely legal and formal entities and enjoy the right to participate in elections and governance as parties. This should facilitate the growth of democratic norms in the tribal society.

Some roadblocks are clearly visible. The acceptance of democratic ideas by the tribal elders and notables may not be taken for granted. They could easily take offence at any signs of encroachment on their traditional status. The influence of the extremists who thoroughly denounce democracy cannot be ignored either. This means the Pakistan-based political parties will need to move circumspectly and at least function more democratically and imaginatively than is their practice across the rest of the country.

The second part of the package comprises development projects. The prime minister has referred to the launching of a second cadet college in Wana, South Waziristan, and plans for three more such colleges, and the establishment of a large hospital. He has placed considerable emphasis on the start of work on two highways and announced the government’s resolve to build highways of international standards to facilitate trade with Afghanistan, the Central Asian states and beyond.

In normal periods development works, such as the establishment of schools and hospitals, can only be welcomed. One hopes the tribal population still considers such institutions as a means to progress. The question of highways, however, needs to be pursued carefully as the tribes’ view of road-building projects in their lands has been subject to change for a variety of reasons. There was a time when tribesmen gave their lives while resisting British plans to build roads. They relented somewhat once Pakistan came into being. After they discovered the benefits of Suzuki Carrys and four-wheel-drive vehicles, for various forms of business, they even started asking for new roads. The situation may have changed now and the government must keep in mind the need to prevent the tribal population from viewing road-building as part of its military strategy.

The third, and in the eyes of many experts, most important, component of the reform is the amendment of the Frontier Crimes Regulation (FCR) of 1901. While a fuller comment on the changes in the century-old colonial law must wait till the text of the relevant ordinance has been closely examined, the amendments reported by the media are, by and large, sound and praiseworthy. These should be examined with reference to the criticism to which the FCR has been subjected for decades and the remedies that have been suggested.

While the FCR as a whole has always been denounced as a bad law, the provisions especially assailed all these years have included the absence of independent judicial organs and total reliance on executive authority, the executive’s power to select jirga members, lack of respect for due process in the trial procedure, the power to blockade a hostile or unfriendly tribe, demolition of houses/buildings and restrictions on the construction of hamlets, villages or towers near the frontier, banishment of people from their places of residence, method and duration of detention and the imposition of collective punishment.At the same time, circumstances have often persuaded the advocates of change to temper their zeal for reform with realism. They recognised the difficulties in doing away with all the FCR features that Justice Cornelius had described as being “obnoxious to all recognised modern principles governing the dispensation of justice”, and conceded the need for progress in measured phases. According to a fairly broad consensus, it was agreed that as a first step the most draconian provisions of the FCR must be removed. And this is what has now been cautiously attempted.

The most significant changes in the FCR include the obligation of the detaining authority to produce the accused before an assistant political agent within 24 hours of his arrest, and he will now be entitled to bail. The appeal against a verdict will still be to an executive authority, though now a two-member forum, but a new right to appeal to a quasi-judicial tribunal has been created. The severity of the collective responsibility provision has been reduced by exempting women, children and old men (over 65) from arrest/detention under this section. Provision has been made to allow compensation for wrongful punishment in civil or criminal matters.

These changes acquire special importance in view of the circumstances under which they have been made. However, even within the parameters of change determined by the need to proceed cautiously, something could have been done to make the selection of members of the jirga rational and conducive to just adjudication.

Although all people have a right to be ruled in accordance with their wishes, in the case of the Fata people this condition is particularly important. It is not correct to say that the reform package has been drafted in a hurry. On the contrary, the government allowed the reform proposals an unreasonably long hibernation period. The package was ready two years ago and some of the proposals had been finalised much earlier. The tribal leaders were consulted all along and many of them were present at the presidency on Saturday last when the reform was enforced.

Most of the political parties (regional level only) have hailed the new measures and the leader of the Fata parliamentarians has also concurred. Yet doubts about these elements’ control over public opinion in Fata cannot easily be suppressed.

Much will depend on the tact and resourcefulness of those who are charged with carrying the reform through.

Life in Fata has undergone a sea change over the last couple of decades. The tribal people had begun their life in Pakistan with the confidence inspired by the Quaid-i-Azam’s gesture of withdrawing the troops from the Fata border. Today, Pakistan’s military is operating in areas it had never entered earlier. There was a time when Fata’s inclusion in the national mainstream presented few challenges. Now the wind seems to have changed its direction. One can only hope that Pakistan does not have to learn the grim lesson that right things done at the wrong time can sometimes be as harmful as wrong things done at the right time.