With a revived Taliban and Al Qaeda operating out of Pakistan’s federally administered tribal areas (FATA), the region has assumed center stage in the US-led "war on terror." To secure these areas, Pakistan’s civilian government seeks to negotiate with tribesmen to end combat, withdraw the army and only use it on last resort, while promoting economic development. Yet this strategy will fail unless Pakistan fully addresses FATA’s regressive and shrinking governance system. Political and legal reforms are essential to extend the state’s writ, uphold constitutional rights, prevent a popular drift to the Taliban, and mainstream and secure the region in the long-term.
Located along Pakistan’s northwestern border with Afghanistan, FATA
consists of seven tribal agencies and six frontier regions with more than 3
million people. Exercising limited control over this fiercely independent
region, the British Empire used force and financial inducements to keep
strategically important roads and passes open while neglecting the remaining
areas – 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 and paying and playing off influential elders, or maliks, with largely secret funds. The British 1901 Frontier Crimes Regulations, with provisions such as collective punishment and double jeopardy that violate Pakistan’s Constitution, remain in effect. Like the British governor general, Pakistan’s president administers the region through the Northwest Frontier Province governor while political parties are legally barred.
Militancy in FATA is attributed to a host of factors including its history as a staging ground for the Soviet jihad, fallout from the post-9/11 invasion of Afghanistan, Pakistan’s maneuvering in Afghanistan, and its sizeable impoverished and illiterate population. Yet the area’s flawed governance has also bolstered the Taliban today in three ways:
First, the full writ of the state has never extended across FATA. Inaccessible areas have existed since the British era where the state has no presence, providing space for criminals and militants. The border has been historically porous with smuggling particularly in narcotics from Afghanistan filling Taliban coffers.
Second, where a system of administration exists, the Taliban and the army are dismantling it. Since 2004, the Taliban have reportedly killed more than 300 maliks. Many maliks now turn to the Taliban, not the central government’s agents, for their marching orders. Meanwhile, as former Northwest Frontier Province governor, General Ali Jan Aurakzai, admitted to this writer in an interview, "army intervention in the tribal areas has weakened the PA." The Taliban 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 the state jirga does not provide speedy justice. Because the century-old British frontier regulations are bad law, not quickly delivered, locals justify turning to the Taliban’s Shariah courts for harsh yet swift justice. Blockades and home demolitions and excessive force during recent military operations, sanctioned by the old British law, have also alienated people and increased the prospects of militancy.
While some analysts argue restoring the pre-9/11 political status quo is key to stabilizing FATA, the clock cannot be fully set back. Aside from rapid socioeconomic changes including hefty remittances and the power of omnipresent television, the Taliban have irreparably damaged the colonial system. They have imposed an alternate form of administration and dispute resolution, cloaked in their version of Islam, promising deliverance here and in the afterlife.
Fortunately, there is widespread recognition of the need for reforms in FATA among all the major political parties as reflected in their 2008 election manifestos. Yet recognition does not necessarily translate into action. Take a key 2006 state-sponsored report by a Frontier Crimes Regulation Reforms Committee, based on consultations across FATA, that continues to languish.
Five factors are often cited for the failure of reform initiatives: the deteriorating security situation, bureaucratic elements with vested political and financial interests, the central government’s fear of losing control of a strategic area, broader political instability in Pakistan, and the tribal people’s rejection of change and suspicion of the government.
The present government has laudably talked up reforms but has also blatantly misspoken. Prime Minister Gillani’s announcement in March that the British regulations would be abolished prompted a backlash. Not only were FATA’s parliamentarians not consulted, but surveys reveal a majority of FATA’s people want amendments – not repeal. Experts have also warned that repealing the regulations would create a vacuum that the Taliban would exploit by calling for Shariah as in the northern region of Swat where operations are ongoing.
The Cabinet Committee on Frontier Crimes Regulations Reforms is now holding consultations with its chairman, the federal law minister, promising to submit recommendations to the cabinet soon. Long overdue legal reforms would be a welcome step, but Islamabad needs to act on a much broader reforms agenda. In doing so, it must remain mindful of the security situation; the will of people in FATA, many of whom will need to be educated on the issues; and the reality that Pakistan’s parties and judiciary with their checkered records enjoy dubious reputation in FATA.
Key political reforms include extending the Political Parties Act to FATA to bolster moderate political forces with a related petition pending in the Supreme Court. Phasing out the maliki system, the state should establish agency councils that are more accountable and representative than the appointed councils that expired last year. A FATA-wide council should also be created with a clear mandate to provide a forum to articulate interests, debate reforms and vote on issues such as FATA’s ultimate status in the federation – something FATA’s people should decide.
On legal reforms, appellate court jurisdiction, currently barred in the region, should be extended. Reforms of the British regulations must be pursued including overhauling certain penalties; giving the parties a role in jirga selection; expediting the judicial process; and accommodating requests for Shariah -based rulings. As Jamaat-i-Islami’s deputy provincial head in the Northwest Frontier Province from Khyber Agency put it, "there can be no peace without justice in FATA."
As violence in FATA spirals out of control, on a scorching summer day in June, angry residents of Kurram Agency protested outside Parliament House in Islamabad. One banner read: "Is Parachinar part of Pakistan? If so, why is the government silent on human rights and why is Parachinar in Taliban’s control?"
These are questions of domestic and international import. For FATA’s plight has exacted a tragic toll on Pakistan and elicited a stark warning from the chairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, that the next terrorist attack on America will likely emerge from these badlands. Part of the answer 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 this ill. The onus is on Islamabad to mainstream this region in conjunction with its people. For one of the Taliban’s greatest strengths in FATA today is the government’s weakness. That is why the federal government must heed the warning of one of its own senior coalition party members, Afrasiab Khattak, from the North West Frontier Province’s ruling Awami National Party: "the question of dismantling militant sanctuaries in FATA and taking short- and long-term measures to open up the areas and integrate it with the rest of the country needs urgent attention if we are to avoid the impending catastrophe."
Ziad Haider is a Master in
Public Policy Candidate at the Harvard Kennedy School of Government and
conducted field research on FATA reforms with the Human Rights Commission of
Pakistan this summer. Rights: © 2008 Yale Center for the Study of
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