Suspected militants and their recovered weapons are presented to the media by Pakistani paramilitary forces at a security compound in the Jamrud area of the Khyber Agency tribal area on March 3, 2017. Photo: AFP / Abdul Majeed

Pakistan’s Federally Administered Tribal Areas (FATA), otherwise known as a breeding ground of terrorism, have been since the country’s creation in 1947 one of its least integrated regions. And it is likely to remain so after the current government has apparently decided to abolish the Frontier Crimes Regulation (FCR), a British colonial legacy, and replace it with a Riwaj Act, roughly translated as the Customary Law Act.

This replacement is part of the government’s bid to merge FATA into Pakistan’s third-largest province, Khyber Pakhtunkhwa (KP). However, not only would this merger be a restricted one, the Riwaj Act is likely to keep treating FATA as an exceptional case.

Although a part of Pakistan, the region has historically been treated as an exceptional area, ruled directly by the central government through “political agents”, a system that is again a colonial legacy.

It was, as a matter of fact, only in 1996 that adult franchise was extended to FATA. Before that year, only tribal Maliks, the gentry, had the right to choose representatives to the Pakistani National Assembly.

Political parties were allowed to campaign freely in FATA only in 2011 when the president of Pakistan at that time, Asif Ali Zardari, signed the Extension of Political Parties Order 2002. The Pakistan Peoples Party (PPP) government also amended the FCR to make it what its officials implicitly called a more humane law, implicitly recognizing that the version the Pakistani state had inherited from British India and kept intact for almost 65 years was “inhumane”. So much for the development of a political system based on justice and equality.

The current controversy about FATA’s merger with KP comes at a time when the region has been beset by several military operations and millions have faced, and many continue to face, displacement. Yet the government’s self-contradictory approach to the question is contributing more to complicating the matter than to an absolute and unrestricted integration.

This is evident from the fact that the FATA reform committee’s report, although it claims that the people of the region are in favor of the merger and has recommended that it go ahead, states that the jirga system, an informal system of civil and criminal adjudication based upon custom, will be retained.

Retention of this system means that FATA, despite being a part of KP, will not fall under the purview of the provincial high court, nor will the laws of Pakistan be applied in the same way as in the rest of the province.

The contradiction becomes even more powerful when we take into account another finding of the report, which states that the people of FATA “were not in favor of having a separate province for FATA as their economic and cultural links were deeply integrated with the adjoining districts” of KP.

One is therefore compelled to question the logic of applying a customary law in FATA only, while sparing the rest of the province. For a people coming from the same ethnic group and sharing the same culture, that is, Pakhtunwali (the Pashtun Code of Honor), this merger appears to be strange political formula whereby the same people would face two different laws in a theoretically unified federal area.

Therefore, the legitimate question is: What kind of integration will FATA experience after the legal recognition of the localized law?

The committee says it “has proposed retention of the jirga system in the civil and criminal justice system of FATA for the reason that its repeal would be resisted and destabilize the social order, which is undesirable”. The committee hopes that the jirga “will develop into the jury system” and also boldly proclaims that “any legal instrument which incorporates the Riwaj as part of the judicial process must ensure that it is not in conflict with fundamental rights as well as other substantive laws administered in Khyber Pakhtunkhwa”.

This is unlikely to happen, however. “No amount of jugglery with words can hide the fact that the Riwaj law will legitimize deviations from the fundamental rights enshrined in the Constitution of Pakistan and will discriminate between the people of FATA and their compatriots within the province of KP and outside it,” wrote I A Rehman, director of the Human Rights Commission of Pakistan.

The contradictions apparent in the committee’s findings and recommendations and the subsequent Riwaj Act have spurred a controversy in Pakistan, with the All Fata Political Parties Alliance calling for complete merger of FATA with KP and extension of the 1973 constitution of Pakistan to the region.

The Riwaj Act, the alliance believes, would not make any meaningful difference to FATA in terms of bringing it to the same level of polity and democracy as in Pakistan’s other provinces. The Riwaj Act has also been opposed by the Bajaur Political Parties Alliance, the FATA Students Organization and representatives from many parties, including the PPP.

What makes it even more problematic and a degenerative formula is that instead of abolishing colonial institutions, such as the office of political agent, the committee’s report recommends that “the institution of political agent being the pivot of the reform process has to be retained and strengthened” during the period leading to the “transition”.

Such a “transition” is, however, likely to take years, if not decades, a FATA source told Asia Times. “It shows that there has occurred no fundamental shift in FATA’s erstwhile existence,” he said. “What further remains unclear is how the government would demilitarize FATA when it continues to be treated as ‘special area’, ruled by customs [rather] than the law of Pakistan, making an unwitting contribution to the absence of rule of law.

“Will then we hear again that the absence of rule of law is contributing to the deterioration of the security situation, allowing terror groups to reorganize themselves?” he wondered.

The reform package is therefore being largely seen as a step toward maintaining the status quo through different, yet qualitatively identical, means. The only difference is FATA’s merger with KP, a merger that has been fairly restricted in the name of the “prevailing circumstances”.

Amid all the controversy, what FATA continues to face is an uncertain political future.

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Salman Rafi

Salman Rafi Sheikh is a Pakistan based independent journalist and a research analyst of international relations and Pakistan affairs. His areas of interest include South and West Asian Geo-politics, the foreign policies of major powers, and Pakistani politics. He can be reached at salmansheikh.ss11.sr@gmail.com