LAHORE
With a revived Taliban and Al Qaeda operating out of Pakistan’s federallyadministered tribal areas (FATA), the region has assumed center stage in theUS-led "war on terror." To secure these areas, Pakistan’s civiliangovernment seeks to negotiate with tribesmen to end combat, withdraw the armyand only use it on last resort, while promoting economic development. Yet thisstrategy will fail unless Pakistan fully addresses FATA’s regressive andshrinking governance system. Political and legal reforms are essential to extendthe state’s writ, uphold constitutional rights, prevent a popular drift to theTaliban, and mainstream and secure the region in the long-term.
Located along Pakistan’s northwestern border with Afghanistan, FATAconsists of seven tribal agencies and six frontier regions with more than 3million people. Exercising limited control over this fiercely independentregion, the British Empire used force and financial inducements to keepstrategically important roads and passes open while neglecting the remainingareas – a status quo preserved after Pakistan’s independence.
Today, political agents still govern the agencies as chief executive,administrative and judicial officers, commanding irregular and tribal forces andpaying and playing off influential elders, or maliks, with largely secret funds.The British 1901 Frontier Crimes Regulations, with provisions such as collectivepunishment and double jeopardy that violate Pakistan’s Constitution, remain ineffect. Like the British governor general, Pakistan’s president administersthe region through the Northwest Frontier Province governor while politicalparties are legally barred.
Militancy in FATA is attributed to a host of factors including its history as astaging ground for the Soviet jihad, fallout from the post-9/11 invasion ofAfghanistan, Pakistan’s maneuvering in Afghanistan, and its sizeableimpoverished and illiterate population. Yet the area’s flawed governance hasalso bolstered the Taliban today in three ways:
First, the full writ of the state has never extended across FATA. Inaccessibleareas have existed since the British era where the state has no presence,providing space for criminals and militants. The border has been historicallyporous with smuggling particularly in narcotics from Afghanistan filling Talibancoffers.
Second, where a system of administration exists, the Taliban and the army aredismantling it. Since 2004, the Taliban have reportedly killed more than 300maliks. Many maliks now turn to the Taliban, not the central government’sagents, for their marching orders. Meanwhile, as former Northwest FrontierProvince governor, General Ali Jan Aurakzai, admitted to this writer in aninterview, "army intervention in the tribal areas has weakened the PA." TheTaliban now fill this cumulative political vacuum.
Third, where the system is intact, its key features fuel anti-state sentiment.In a 2008 British government-sponsored survey, 73 percent in the region said thestate jirga does not provide speedy justice. Because the century-old Britishfrontier regulations are bad law, not quickly delivered, locals justify turningto the Taliban’s Shariah courts for harsh yet swift justice. Blockades andhome demolitions and excessive force during recent military operations,sanctioned by the old British law, have also alienated people and increased theprospects of militancy.
While some analysts argue restoring the pre-9/11 political status quo is key tostabilizing FATA, the clock cannot be fully set back. Aside from rapidsocioeconomic changes including hefty remittances and the power of omnipresenttelevision, the Taliban have irreparably damaged the colonial system. They haveimposed an alternate form of administration and dispute resolution, cloaked intheir version of Islam, promising deliverance here and in the afterlife.
Fortunately, there is widespread recognition of the need for reforms in FATAamong all the major political parties as reflected in their 2008 electionmanifestos. Yet recognition does not necessarily translate into action. Take akey 2006 state-sponsored report by a Frontier Crimes Regulation ReformsCommittee, based on consultations across FATA, that continues to languish.
Five factors are often cited for the failure of reform initiatives: thedeteriorating security situation, bureaucratic elements with vested politicaland financial interests, the central government’s fear of losing control of astrategic area, broader political instability in Pakistan, and the tribalpeople’s rejection of change and suspicion of the government.
The present government has laudably talked up reforms but has also blatantlymisspoken. Prime Minister Gillani’s announcement in March that the Britishregulations would be abolished prompted a backlash. Not only were FATA’sparliamentarians not consulted, but surveys reveal a majority of FATA’s peoplewant amendments – not repeal. Experts have also warned that repealing theregulations would create a vacuum that the Taliban would exploit by calling forShariah as in the northern region of Swat where operations are ongoing.
The Cabinet Committee on Frontier Crimes Regulations Reforms is now holdingconsultations with its chairman, the federal law minister, promising to submitrecommendations to the cabinet soon. Long overdue legal reforms would be awelcome step, but Islamabad needs to act on a much broader reforms agenda. Indoing so, it must remain mindful of the security situation; the will of peoplein FATA, many of whom will need to be educated on the issues; and the realitythat Pakistan’s parties and judiciary with their checkered records enjoydubious reputation in FATA.
Key political reforms include extending the Political Parties Act to FATA tobolster moderate political forces with a related petition pending in the SupremeCourt. Phasing out the maliki system, the state should establish agency councilsthat are more accountable and representative than the appointed councils thatexpired last year. A FATA-wide council should also be created with a clearmandate to provide a forum to articulate interests, debate reforms and vote onissues such as FATA’s ultimate status in the federation – something FATA’speople should decide.
On legal reforms, appellate court jurisdiction, currently barred in the region,should be extended. Reforms of the British regulations must be pursued includingoverhauling certain penalties; giving the parties a role in jirga selection;expediting the judicial process; and accommodating requests for Shariah -basedrulings. As Jamaat-i-Islami’s deputy provincial head in the Northwest FrontierProvince from Khyber Agency put it, "there can be no peace without justice inFATA."
As violence in FATA spirals out of control, on a scorching summer day in June,angry residents of Kurram Agency protested outside Parliament House inIslamabad. One banner read: "Is Parachinar part of Pakistan? If so, why is thegovernment silent on human rights and why is Parachinar in Taliban’scontrol?"
These are questions of domestic and international import. For FATA’s plighthas exacted a tragic toll on Pakistan and elicited a stark warning from thechairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, that the nextterrorist attack on America will likely emerge from these badlands. Part of theanswer to these questions is FATA’s antiquated and ineffective governance –a glaring example of how a local ill can affect global security.
No amount of anti-terrorism operations or development aid alone can cure thisill. The onus is on Islamabad to mainstream this region in conjunction with itspeople. For one of the Taliban’s greatest strengths in FATA today is thegovernment’s weakness. That is why the federal government must heed thewarning of one of its own senior coalition party members, Afrasiab Khattak, fromthe North West Frontier Province’s ruling Awami National Party: "thequestion of dismantling militant sanctuaries in FATA and taking short- andlong-term measures to open up the areas and integrate it with the rest of thecountry needs urgent attention if we are to avoid the impending catastrophe."
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Ziad Haider is a Master inPublic Policy Candidate at the Harvard Kennedy School of Government andconducted field research on FATA reforms with the Human Rights Commission ofPakistan this summer. Rights: © 2008 Yale Center for the Study ofGlobalization. YaleGlobalOnline
