REGIONAL INSTITUTE OF POLICY RESEARCH & TRAINING PESHAWAR RIPORT FORUM SEMINAR ON REVIEW OF FATA REFORMS AND THE NEXT STEPS

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1 1. THE PURPOSE OF DEBATE RIPORT FORUM SEMINAR ON REVIEW OF FATA REFORMS AND THE NEXT STEPS (November 3, 2011) The Ministry of States and Frontier Regions, Government of Pakistan requested the RIPORT for providing a forum of advocacy for discussing different dimensions of the Fata Reforms package announced by the President of Pakistan on 13 August 2011 on the eve of 64 th Independence Day, with a cross-section of the concerned stake-holders, including FATA parliamentarians, tribal elites, bureaucrats and experts in tribal administration. RIPORT FORUM, the advocacy arm of RIPORT, organized a seminar on the subject in collaboration with the Ministry of SAFRON, Government of Pakistan on 3 rd November 2011 at Islamabad Club, with Haji Munir Khan Orakzai MNA and Leader of FATA Parliamentarians Group in the National Assembly, as the Chief Guest. Engr Shaukatullah Khan, Federal Minister for SAFRON opened the deliberations with his inaugural speech on the institutional weaknesses that have crept into the governance structure in FATA over the past couple of decades and the urgency for rectifying the deficiencies by a process of reforms. Besides the tribal parliamentarians, eminent scholars, ex- ambassadors, senior civil servants, media persons and representatives of international community and diplomatic missions in Islamabad participated in the debate on the implications and futuristic perspectives of the political and institutional reforms in FATA, with a view to suggesting further policy initiatives for improving the governance, human rights, stabilization of security situation and restoration of writ of the state in the region. 2. EXPECTED RESULTS After in-depth analysis of the conventional pattern of governance and judicial dispensation under the FCR and jirga system and with the resultant consensus as to the need for meaningful reforms in FATA, the FORUM was expected to recommend further improvement in the existing governance structure, in consultation with tribal elders, to ensure political and economic empowerment of the people of FATA, enabling them to play their role in the mainstream of national life. 3. PROCEEDINGS After recitation from the holy Quran, Mr. Khalid Aziz Chairman RIPORT, who moderated the debate, welcomed the Federal Minister for SAFRON and other dignitaries for their participation

2 and interest in this vital area of national and international significance. The Chairman appreciated the initiative by the present Government to promulgate the Frontier Crime (Amendment) Regulation 2011, whereby the colonial legislation of FCR 1901 was amended, allowing the tribal population some relief, by clipping the arbitrary judicial and executive powers of the Political Administration and subjecting their performance to judicial scrutiny by an Appellate Tribunal, with powers almost close to those of the High Court. The extension of Political Parties Order 2002 to FATA was also described as a bold initiative, aimed at getting the tribesmen out of political stagnation and socio-economic inertia in the region. The Chairman called upon the participants to come up with a critical assessment of FATA reforms in the perspective of the aspirations of the people in terms of human rights, social justice, economic emancipation and gender balance and also to make viable suggestions for a road map of future political set-up and governance model, commensurate with the emerging geo-political scenario in FATA. Before calling upon the panelists to put forward their point of view on the relevant issues relating to the subject, the Chairman requested Engr. Shaukatullah Khan, Federal Minister for SAFRON to address the audience on FATA Reforms. 4. INAUGURAL SPEECH BY ENGR. SHAUKATULLAH KHAN, MINISTER FOR SAFRON The Minister thanked RIPORT and the Ministry of SAFRON for their joint initiative to organize the seminar, which was the first ever public debate on the major policy reforms introduced by the present Government in FATA. He drew attention of the audience to an oft-quoted myth associated with FATA, that the tribesmen were happy and satisfied with their customs and traditions and hence fond of status quo in the socio-economic and political way of life. They have accordingly been kept aloof and disconnected from the mainstream of national life. But the myth has now broken and a strong urge for change was being witnessed in FATA. He traced the origin of the tragic events in FATA in the recent past to years of neglect and deprivation generated by continued armed conflict in neighboring Afghanistan, sponsored by World powers during the past couple of decades to safeguard their strategic interests in the region. He informed the audience that the Government realized the need for clearing the mess by initiating a process of institutional reforms to rationalize and strengthen the governance structure in FATA. He added that the Government was aware of the emerging challenges and was planning to put in place a structural framework to ensure implementation of the FATA reforms, as failure to do so may result in a situation similar to that in Malakand Division. He lamented that the militants escaping military action in Swat were being

3 hosted as IDPs in safe heavens in Kunar province across the Durand Line in Afghanistan. They frequently infiltrate into Pakistan territory and, after causing casualties of both civilians and security personnel, flee back to their bases on the Afghan soil. After the inaugural speech by the Federal Minister for SAFRON, the Chairman requested the panelists named below to present their expert views on the relevant issues, noted against each: 5. PANELISTS a. Professor Ms. Minhas Majeed, Department of International Relations, University of Peshawar. (Issue: Need for Human Rights and Gender Sensitivity in Future Reforms ) b. Mr. Ayaz Wazir, former Ambassador to Afghanistan. (Issue: Future Priorities for FATA Reforms) 6. GIST OF PRESENTATIONS i. Need for Human Rights and Gender Sensitivity in Future Reforms Ms. Minhas Majeed dilated upon the subject of sensitivity with special emphasis on the plight of marginalized and vulnerable segments of society. She particularly mentioned the womenfolk in tribal areas, who constitute almost 50 % of population but are completely denied access to basic human rights, including education, health-care, private property and employment etc., to say the least. She also mentioned the exploitation of female population in FATA under inhuman customs like Swara, whereby a young girl is offered in marriage to a male member of the hostile family for settlement of a family feud. Under this arrangement the Council of Elders or Jirga, while holding a family guilty of high-handedness in a criminal dispute, directs the head of the family to get one of his young daughters married to a male member of the aggrieved family in return for withdrawal of the criminal charge, aimed at stopping further blood-shed under the tradition of Badal or revenge. She called for evaluation of the reforms process in the perspective of human rights and rule of law to protect the female population from exploitation under such customary laws and discriminatory traditions. In the absence of female members from FATA in Parliament, women are not being consulted in formulating reforms for FATA, she lamented. The absence of law provides space to negative forces to intervene in the social order, as witnessed in FATA. She termed recent amendments in FCR a right step in the right direction, though belated, but wished these were part of the 18 th amendment in the Constitution, approved by the Parliament earlier.

4 To make the FATA reforms more effective and relevant, there is desperate need to focus on the people, particularly the female population in FATA, instead of looking at FATA only as a strategic area in the region. She therefore emphasized that at least a beginning should be made to protect the rights of women within the tribal context, in anticipation of further emancipation in future. The effectiveness of recent reforms in FATA was neutralized by the simultaneous legislation titled Actions In Aid of Civil Power Regulation. She therefore stressed that the FATA Appellate Tribunal constituted under the Frontier Crime (Amendment) Regulation 2011 should be vested with Habeas Corpus and Writ jurisdiction at par with the High Court under Article 199 of the Constitution of Pakistan. The extension of Political Parties Order 2002 to FATA was also billed as a positive gesture, aimed at political empowerment and awareness of the people of FATA. However, the panelist called for gender balance in the political process and attributed the patriarchal participation in the electoral process to the lack of appropriate forums for advocacy of female participation in the political process in the country, particularly in FATA. At the conclusion, she reiterated the need for an end to the political isolation of FATA, by treating it as a strategic area alone. ii. Future Priorities for FATA Reforms Mr. Ayaz Wazir stressed the need for consultation with the people of FATA, while making policy decisions relating to FATA affairs and added that the need to mainstreaming FATA through involvement of its people for solving the problems of FATA, cannot be over-emphasized. He further pointed out that the Regulation titled Actions In Aid of Civil Power, promulgated earlier in June 2011, negated the effects of FATA reforms announced two months later in August 2011, as the military had begun action under it in an atmosphere already vitiated by FCR. A special committee should be put in place to monitor implementation of the reforms in FATA. Rehabilitation and reintegration of FATA IDPs is a matter of great concern, which should be looked into on priority basis. The victims whose houses have been demolished in the wake of drone attacks and counter-insurgency operations must be compensated. He suggested that a reconciliation strategy should be adopted in FATA to avoid further collateral damages. He recommended that further funding of ghost schools and health units may be stopped to avoid wastage of public money and instead such institutions be established under public-private partnership in FATA. In the long-run, he suggested that a multi-sectoral development program on the pattern of Marshall Plan may be put in place in FATA for confidence building through restoration of physical infrastructure and institutional framework in the region. The program should focus on education, particularly female education, improvement of health delivery system and restoration and development of agriculture, horticulture and mineral exploration/extraction in FATA.

5 While appreciating the extension of Political Parties Order 2002 to FATA, the panelist suggested that in order to further strengthen the reform process in FATA it should be given the status of a province of the Federation or in the alternative a Consultative Council comprising five members selected from each Agency, should advise the Governor Khyber Pakhtunkhwa on ways and means for integrating FATA into KP province with representation in the Provincial Assembly of Khyber Pakhtunkhwa. 7. HABIBULLAH KHAN, SECRETARY SAFRON Mr. Habibullah Khan, Secretary SAFRON, presenting the Government point of view on the subject, described the FATA Reforms of 13 August 2011 as a landmark decision of the Government, bringing about major changes in the FCR for the first time since In his visual presentation, the Secretary identified the main concerns of the people of FATA in regard to the existing FCR regime, as under: Un-checked judicial powers of Political Agent Arbitrary powers of arrest and detention for security No time limit for disposal of cases No effective tiers of appeal/ revision No forum for redressal of grievances No protection to women, children and aged people He further highlighted the salient features of recent amendments made in the FCR 1901 with promulgation of the Frontier Crime (Amendment) Regulation 2011, as follows: A person arrested under FCR shall be produced before a magistrate within 24 hours (Section 11) Provision of right of bail ( Section 11 ) Phased and step-by-step action against a defaulting tribe under the principle of Collective Responsibility Women, children below 16 and aged above 65 shall not be arrested or detained under Collective Responsibility of tribe ( Sections 21 & 22 ) Time limits fixed for disposal of cases Period of security for keeping peace reduced from 3 years to 2 years ( Section 40 ) Check on arbitrary powers to arrest ( Section 40-A ) Enhanced revisional jurisdiction of FATA Tribunal FATA Tribunal vested with powers similar to High Court under Article 199 of the Constitution ( Section 55-A ) All fines / funds to be regulated and accounted for The above FATA reforms, though apparently revolutionary in nature, are only a beginning and not an end in itself. While contemplating the next steps in this direction, we ought to be cautious about the prospects of overnight transformation of governance structure in FATA, keeping in view the challenges

6 and pitfalls in implementing the instant initiatives. A careful study of the following areas of concern, therefore, needs be undertaken before further intervention for reforming the existing model: FCR in its existing form does not cover the entire geographical extent of each Agency/FR in FATA. It was never extended to certain un-administered/ inaccessible areas in FATA since Will the reforms/ amendments be applicable to such areas in FATA? How much percentage of population is covered under FCR? Capacity of the Government agencies to implement further reforms in FATA? Acceptability by the local population. How do they look to the new system own or alien? Will the reforms in administration of justice cater for satisfaction of the parties and ensure the actualization of the cherished dream of quick and cheap justice? Commenting on the extension of Political Parties Order 2002 to FATA, the Secretary SAFRON observed that as a result of this initiative, the dynamics of political parties will work as the agents of change in FATA. He hoped that political empowerment of the people of FATA will pave the way for their issue-wise alignment and realignment cutting across ethnic, tribal and sectarian affiliations. 8. GENERAL DISCUSSION BY PARTICIPANTS Mr. Aziz Khan, former Ambassador pointed out that keeping in view the continuing wave of insurgency in tribal areas, the necessity of a law for dealing with militants with a heavy hand in FATA cannot be over-looked. He, however, expressed reservations about the sweeping powers given to security forces under the Actions In Aid of Civil Power Regulation for search operations in FATA. He observed that empowering military to search residential units for rounding up suspects in FATA was potentially dangerous, being violative of the tribal norms and established customs. He subscribed to the view expressed by Ambassador Ayaz Wazir and Ms Minhas Majeed that this piece of parallel legislation would neutralize the impact of FATA Reforms in the region. The complementary views from different speakers on this subject led to a consensus on the importance of the issue, suggesting its early resolution to render the FATA reforms meaningful. AVM Aliuddin called for a gesture of reconciliation with the militants, whose presence in the area as an integral part of tribal society is a reality. The militants perspective about FATA reforms should be taken into account, as taking them on board may at some stage become indispensable for successful implementation of reforms in FATA, the AVM cautioned. Mr. Raheel Khan, a free-lance journalist, asked Secretary SAFRON whether FATA has been declared as a Conflict Zone to justify the enforcement of In Aid of Civil Power regulation within this part of the country. He observed that the anomalous situation is likely to pose serious challenges in the implementation of reform agenda of the Government in FATA. Mr. Habibullah Khan, Secretary SAFRON, in response to the observations of Mr. Raheel Khan and to similar comments made earlier by other participants, set out to differentiate between the FCR and the legislation titled Actions In Aid of Civil

7 Power. He explained that FCR was meant for dealing with tribesmen, carrying civil/ criminal liability under Collective Tribal Responsibility and / or those guilty of violating the law of the land, while the Regulation seeking deployment of military for Actions in Aid of Civil Power is a special counterinsurgency legislation designed for dealing with terrorism and militancy in FATA, parallel to counterinsurgency laws like the Patriot Act in USA, Defense of Pakistan law / Maintenance of Public Order Ordinance in Pakistan and similar laws for containing terrorist activities in the UK. He, however, informed the Forum that the Prime Minister of Pakistan has shown willingness to amend the law relating to military role In Aid of Civil Power in FATA. Mr. Asif Ezdi, Political Analyst suggested that keeping in view the identical ethnic consanguinity of the people of FATA and the KP province, bound together by common language, culture, traditions, social values, and continuing socio-political and commercial interactions, FATA should be merged into the province of Khyber Pakhtunkhwa, with proportional representation in the Provincial Assembly. Integration of FATA into KP province in a phased manner was also supported by Ambassador Ayaz Wazir and other participants. Haji Munir Khan Orakzai, the Chief Guest in his concluding remarks, appreciated the effort jointly made by the RIPORT and the Ministry of SAFRON, to holding the Forum seminar for a review of the governance system and the reforms process in FATA. He questioned the silence on the part of the World over the plight of the people of FATA in the wake of America s War-on Terror and the counterinsurgency strategy pursued by Pakistan government. He lamented that FATA was kept backward by the forces, both within and without, on account of its strategic location and the geo-political interests of the regional and international actors. He suggested that: the Regulation titled Actions In Aid of Civil Power should be operative only for a limited period of time and not on permanent basis; the institutions of Malik and Political Agent should sustain to facilitate conflict resolution; security operations must be accompanied by dialogue and development effort, if reforms were to be put in place in FATA; Development effort should be focused on extensive road networking to boost exploitation of natural resources in FATA; and To regulate political activities in FATA under the Political Parties Order 2002, the Code of Conduct for political parties should be activated in the imminent future in FATA. 9. FINDINGS AND RECOMMENDATIONS In the wake of consensus that developed at the conclusion of the discussion, the following recommendations were made by participants of the dialogue:

8 The institutional break-down and increasing drift towards radicalization in FATA are largely attributable to the military operations mounted in FATA in the year 2002 onward to flush out the militants from the area and to destroy their hide-outs along the Durand Line; The strategy was adopted by Pakistan government under American pressure to align itself with the War-on Terror, purportedly to address security needs of Pakistan; The continued refusal by Pakistan Government to debate its arbitrary decision to join the Waron-Terror alienated the people of FATA. It is therefore essential that a comprehensive public debate, both in and outside the parliament, be initiated to enlist support for an effective counter-insurgency strategy, commensurate with Pakistan national interests; A nationally owned counter-insurgency doctrine, based on civil-military cooperation, should be evolved to minimize collateral damages due to military operations and US drone attacks, with the object of stabilizing security situation in FATA, to facilitate the rehabilitation and reintegration of FATA- IDPs in the return areas; The FATA Tribunal should be vested with enhanced powers of Writ and Habeas Corpus jurisdiction at par with High Court under Article 199 of the Constitution of Pakistan; The recently promulgated Frontier Crime (Amendment) Regulation 2011 is a good initiative but not an end in itself. Necessary governance structure should be put in place so that the FATA Tribunal constituted under the Regulation, may be installed without delay to hear the revision petitions of the aggrieved parties; It is heartening to note that following the extension of Political Parties Order 2002 to FATA, a Code of Conduct drafted with the consensus of all political parties operating in FATA, has been on the anvil. The move, when materialized, will guarantee political empowerment of the marginalized population of FATA, rid them of the sense of alienation and get them onto the mainstream of national life through a democratic process. A process of consultation with tribal elders and other stake-holders should be initiated for a genuinely popular decision on either of the following options regarding the fate of FATA in terms of its future governance model, best suited to the collective interests and aspirations of the tribal population: a. Should FATA be given the status of a separate province in the Federation; OR b. Should FATA be merged with Khyber Pakhtunkhwa province? Besides political empowerment of the people of FATA, effective steps may be taken to ensure their economic empowerment through an equitable development strategy, focusing on investment in agriculture, mineral exploitation, development of hydro-electric and water resources and road networking in FATA. 10. CONCLUSION The Chairman summed up the debate by highlighting the key issues discussed by the participants. He concluded by saying that

9 The international donors community deserves appreciation for funding the post-conflict activities in Pakistan. What is, however, required now is a review of the institutional meltdown during the past decade that resulted in radicalization of the region. The continued neglect and disconnectedness of FATA had rendered this vast strategic territory a potentially explosive spot in the region. Abdullah azzam, one of the die-hard leaders of Afghan war of resistance against the Soviet occupation of Afghanistan in late eighties, had aptly predicted, in his famous Fatwa of Afghan Jehad, the utility of FATA for future jehad in the region. It is high time that as a corollary of the ongoing counter-insurgency strategy we must focus our energy and resources on future reforms agenda in FATA. Realizing the desperate need for transformation the Government has ultimately embarked upon a process of institutional and political reforms to address the needs and aspirations of the people in FATA. Though the reform process had been initiated back in 1997 with introduction of adult franchise in FATA, the long-awaited amendments in the FCR 1901 and the extension of Political Parties Order 2002 to FATA by the present government is a major break-through in revamping the governance structure for socio-political transformation of FATA. The half-baked reforms package, though a good beginning of political empowerment of the tribal population, reflects a phased approach to the cherished dream of the people of FATA for determination of the constitutional status of FATA. The roadmap towards this end would require a careful assessment of the popular aspirations and ideals of the people through a process of consultation with tribal elite and leaders of public opinion, as any autocratic decision for determining the fate of FATA, without active involvement of the tribes, will be counter-productive. The present packages of FATA Reforms do not adequately address the grievances of the people of FATA. The next dose of reforms should be more comprehensive with exposure of FATA to the benefits of economic development, political empowerment and better human rights situation and gender equilibrium. The FATA Tribunal provided for in the Frontier Crime (Amendment) Regulation 2011 should be vested with powers of writ jurisdiction at par with the High Court under Article 199 of the Constitution of Pakistan. The introduction of an empowered and representative local government model based on adult franchise will also serve as an effective forum for consultation with the tribesmen on the next steps for future reforms in FATA. The Pakistani security doctrine for handling militancy in FATA should be revisited and a counter-insurgency approach based on close civil-military cooperation aimed at rehabilitation and stabilization of FATA and driven by the national interest alone should be adopted to minimize the volume of collateral damages suffered by the innocent people of FATA in the past.

10 The Regulation relating to Actions in Aid of Civil Power that gives sweeping powers to security forces to search the hide-outs of militants and round up suspects in FATA, though an effective instrument for countering insurgency in the area, apparently neutralizes the spirit and intent of recent amendments in FCR and extension of Political Parties Order 2002 to FATA. To guard against indiscriminate use of these powers and to avoid collateral damage to innocent civilian victims, the legislation needs be revisited and rationalized so that the FATA Reforms should bear fruit for the beneficiaries. In the long-run the constitutional status of FATA must be revisited to determine the will of the people and stake holders in FATA by choosing a governance structure, based on any one of the following models: i. The existing conventional model based on the principle of Collective Territorial Responsibility may be retained with more suitable amendments in FCR and structural modifications in the governance pattern, by strengthening the institutions of political agent, maliks or elders, jirga and Nikat etc with appropriate access to justice, human rights, and gender balance, regulated by the superior judiciary in exercise of its writ jurisdiction extended to FATA. The conventional model so strengthened and reformed may be put under administrative control of a separate Governor for FATA, with administrative support from the existing FATA Secretariat. The amended FCR should be extended for all practical purposes to all inaccessible and un-administered parts of FATA, to ensure easy and equitable access to justice by all segments of the tribes. ii. FATA may be converted into a separate province with complete provincial set-up, including provincial legislature, judiciary and executive hierarchy under a Chief Executive, with administrative support from FATA/ provincial Secretariat and attached departments to run the day-to-day business of the new province/ federating unit, with all laws and legal jurisdictions extended to it in the prescribed manner. The financial cost of the exercise will have to be borne by the Federal Government iii. FATA may be merged into the province of Khyber Pakhtunkhwa on the pattern of PATA (Provincially Administered Tribal Areas, comprising Malakand division) with proportional representation from FATA constituencies in the Provincial Assembly of KP. The writ and appellate jurisdiction of Peshawar High Court will stand extended to the newly merged parts of KP province and likewise the FATA Secretariat will be integrated into the civil secretariat Peshawar, strengthening the working capacity and infrastructural space to handle the additional workload. The grievances of the people of FATA will thus be addressed at par with the people of KP.

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