Will Fata be lost to history again?

In the 1800s, the area previously known as Fata was strategically nestled between Afghanistan and the British Empire. These were the days of the Great Game – a chess match between the British and Czarist Russia over control of Central Asia.

In 1899, Lord Curzon was appointed viceroy and governor general of India. Curzon believed that Russia posed a grave threat to the Empire’s jewel in the crown, India. In 1901 he wrote “……. Russia’s ultimate ambition is the dominion of Asia ...Britain (is) compelled, to defend that which she has won.” Curzon was the one who pushed for and achieved the ‘Three-Fold Frontier’ in which Fata fell within the ‘second zone’, a kind of defensive buffer region.

The problem was that the Pashtun tribes would successfully defeat anyone that tried to control them. Akbar saw his army vanquished as did Aurangzeb. Britain also saw its ‘Great Army of the Indus’ destroyed in 1842. One man alone, Dr William Brydon, was allowed to escape half-dead. When he reached the British Fort he was asked where the rest of the army was and he famously replied: “I am the army”. Curzon therefore wrote “No patchwork scheme will settle the Waziristan problem. Not until the military steam-roller has passed over the country from end to end, will there be peace. But I do not want to be the person to start that machine.”

This is when he came up with the concept of “indirect rule”, placing the tribals under the legal framework of the Frontier Crimes Regulations (FCR), an engine of oppression and subjugation.

So was created the ‘political agent’, who represented the Raj and who was the police, judge and executioner in one absolute legal authority, while the tribal leadership and their internal autonomy was also recognized. Through the FCR, the British continued to administer the people of Fata. The tribal areas hence remained totally backward with hardly any infrastructure.

Quaid-e-Azam’s immediate step after Pakistan’s creation in 1947 was to withdraw troops. In his 1948 address to the Grand Jirga from the tribal areas, he said: “…Pakistan wants to help you and make you...self reliant and self sufficient and help in your educational, social and economic uplift...” He fully realized the importance of development of the area and said “It is no longer a foreign government. We want to put you on your legs as self-respecting citizens who have the opportunities of fully developing ... It will certainly be my constant solicitude and indeed that of my Government to try to help you to educate your children.”

Unfortunately, with the Pakistan-Afghanistan relationship deteriorating, the status quo remained in Fata after Jinnah. While the rest of the country enjoyed fundamental rights, the inhabitants of Fata were kept under the inhumane and anti-democratic FCR as second-rate citizens. Under the direct control of the federal government, residents of Fata had no civil rights whatsoever. The FCR continued to provide for “collective responsibility”, under which if one person committed a crime, the entire tribe could be punished. Under the FCR, individuals could also be arrested and detained for years without recourse, punishments were given and carried out without appeal by jirgas and the government could seize and destroy private properties without due process.

At the same time, Fata was left totally undeveloped with no economic opportunity and with more than 70 percent people living below even the national poverty line while the Maliks and political agents enjoyed themselves.

With the invasion of Afghanistan by the USSR and the proxy war fought from Pakistan’s soil, Fata eventually became a hub of terrorism, narcotics smuggling and even a safe haven for kidnappers. It was through Operation Zarb-e-Azb that the army destroyed terrorist strongholds. This was of course at a huge cost to the local people who were displaced and whose homes were destroyed in the fighting. Credit goes to Pakistan’s armed forces for bringing back Fata’s people and reconstructing their destroyed homes. However, the development of the area remains dismal.

Under these circumstances, a committee was set up by the previous government, Headed by Sartaj Aziz, the committee published the Fata Reforms Implementation Plan in November 2017 in which it was envisaged that Fata would be merged into KP over a period of five years. The wise reason for giving a sunset provision of five years was to enable the federal and KP governments to put infrastructure in place for a smooth transition. However, in a strange and potentially disastrous move, the previous parliament, just a day before its dissolution, passed the 31st Constitutional Amendment, making Fata part of KP. What was envisaged to be achieved over a period of five years was done in a minute, almost to ensure it failed.

When the caretaker government was formed, it was faced with an emergency – the FCR was gone and the laws of the federation and of KP had become applicable on Fata but any without infrastructure. The first impact of this was that all taxes which were not applicable to Fata before merger were suddenly now to be paid by the people of Fata without any reciprocal facilities provided by the government. At the same time, everything within Fata under the old structure of the FCR had become illegal and the administration, levies, jirgas were all operating in a vacuum without backing of law. This state of confusion could not continue.

The caretaker prime minister constituted a Fata Committee to suggest and take immediate measures. I was appointed the chairperson of this committee. After consultations with all stakeholders, it was decided that – while long-term measures would be taken by the succeeding government, two immediate steps were necessary and imperative. First, the people of Fata were to be given exemptions from taxes and duties; and second, an ordinance was to be drafted to act as a ‘legal bridge’ for the transition.

This law was designed to provide the legal framework for the temporary period while the infrastructural developments were taking place and changes to the prevailing tribal setup were being made to bring it in line as far as possible with the constitution.

While the exemption notifications were issued by the caretaker federal government, unfortunately the then interim KP chief minister did not submit the ordinance to the governor for approval.

At the oath-taking ceremony of Prime Minister Imran Khan, I met the new chief minister of Khyber Pakhtunkhwa and apprised him of the urgency to create this legal framework without which there will be unrest. I had expected the federal and KP governments to treat the Fata issue as one of its priorities. Unfortunately, to date the matter seems to be at a standstill.

While I understand that the government is dealing with many issues, this is a crucial matter which requires immediate action. With the war on terror, the power of tribal elders has eroded in the region. The writ of the state, if at all, is operating without law. In this void of power, without apparent sovereign authority, there is imminent danger of serious turmoil being created by foreign elements. Despite being a part of Pakistan, there are no police and police stations in Fata; the Levies and khasedars do not have any legal status; there are no prosecution branches, or local judiciary and court infrastructure and people do not have physical access to a high court or the Supreme Court. Confusion continues to prevail.

Fata is an integral part of Pakistan. I do not see any reason why the KP government should not forthwith pass a law to establish the legal structure in Fata so that the area gets some space for development. At the same time, the federal government should have by now given hope to the people by announcing what steps it intends to take for the implementation of the Fata Plan.

Fata has great potential which must not be wasted. What was promised by the Quaid to those who supported and joined Pakistan must be fulfilled. What one does not want to see is Fata suffering yet again due to slackness or confusion within the new government.

The writer is a Supreme Court advocate who served as a caretaker federal minister in 2018, and was the president of the Supreme Court Bar Association in 2015-16.