Political Reforms in FATA?

Until the introduction of adult franchise in 1996, an electoral college of some 35,500 maliks selected representatives to the National Assembly (the lower house of the national parliament), typically under directives from their benefactors in the po- litical administration. In the 1997, 2002 and 2008 polls, FATA legislators were directly elected to the National Assembly. The agencies’ representatives to the national parliament are elected on a non-party basis.

The Political Party Order (PPO) (1962) was amended under Musharraf as the PPO (2002), but specifically excluded FATA. FATA Members of the National Assembly (MNAs) wield little authority in the national parliament and cannot legislate on the tribal areas. Today, most cannot even visit their constituencies, since militants control large areas and even interfere directly in the electoral process in some agencies. The civil bureaucracy continues to dominate almost all areas of governance since FATA’s elected representatives lack both the authority and capacity to direct governance.

In 2002, the Musharraf government created a separate governor’s secretariat for FATA, ostensibly to eliminate bottlenecks created by multiple administrative tiers, with all line departments brought under this body. In 2006, it was restructured as the FATA secretariat. With limited resources, the FATA secretariat is dependent on its NWFP counterpart for personnel. FATA’s additional chief secretary, the secretariat’s top official, has to request NWFP’s chief secretary to appoint an officer to the secretariat. According to a former NWFP chief secretary, whoever holds the office “is not going to send his best officer since he wants him in his own secretariat”, so “capacity in the FATA secretariat remains low”.

In December 2004, the NWFP governor, at Musharraf’s behest, issued a notice establishing provisional agency councils that were meant to facilitate local participation in development and other matters. A council’s seat allocation was determined by population; 70 per cent of councillors were elected by tribal jirgas, the remaining 30 per cent were reserved for tribal elders, ulema (religious scholars), technocrats, women and minorities nominated by the secretariat on the recommendation of political agents. While these bodies ostensibly devolved power to communities, the military regime’s actual motive was to retain centralised control while defusing local demands for representative institutions. The councils were to have a three-year tenure and were dissolved in 2007.

 “When adult franchise was extended [in 1996] people in FATA thought that more was coming”, said Adnan Aurangzeb, a former MNA from Swat. “For twelve years now, nothing has happened”. But in 2002, the elections [held by the military government] were managed, liberals were sidelined, and the mullahs won. This was a major boost for militancy”. In this rigged elections, candidates affiliated to the Musharraf-backed six-party religious coalition, the Muttahida Majlis-e-Amal (MMA), won seven of FATA’s twelve National Assembly seats.
 The 2008 elections in FATA yielded a deeper spectrum of political representation, including candidates affiliated to the moderate Pakistan Peoples Party (PPP) and its ANP coalition partners. Without military patronage, the religious parties won only a single National Assembly seat, reflecting the popular rejection of Talibanisation.

With the collaboration of Tribal Areas Development Foundation (TADF), Peshawar University Association (PUTA), Institute of Management Studies (IMS) and South Asia Partnership of Pakistan (SAP-PAK), two days (August 27-28, 2000)tribal conference was held in order to discuss the devolution plan in FATA. In that conference,  a FATA Reforms Committee was established. This committee comprising tribal elders, retired bureaucrats.
 
FCR Reforms Committee (2005-2009): The committee headed by Justice Ajmal Mian, a retired Supreme Court judge and former Chief Justice of the Peshawar High Court deliberated on judicial matters pertaining to FATA, in particular to FCR and drafted recommendations in this regard.

The incumbent PPP, Nawaz Sharif’s Pakistan Muslim League (PML-N) and the ANP had all made reform a major part of their manifestos. A FATA-NWFP merger was also a key component of the Charter of Democracy, signed between the PPP and PML-N in May 2006. On 25 March 2008, in his first speech as prime minister, Yousaf Raza Gilani promised to repeal the FCR, and the PPP-led government constituted a parliamentary committee for the purpose. By November 2008, however, amid increasing ANP resistance36 and the military’s pressure, the process stalled.

Some senior ANP and PPP members had advised against major changes in FATA while the state was fighting an Islamist insurgency there.  In October 2008, the PPP and the PML-N steered a fourteen-point consensus resolution through the National Assembly defining a broad government framework to combat extremism, including political reforms and economic development in FATA. In July 2009 the ANP’s central executive committee passed a resolution calling for FATA’s incorporation into NWFP; comprehensive reforms to the FCR to void any provisions that contradict the constitution and basic rights; and extension of the Political Party Order (PPO) (2002) to FATA.

On 14 August 2009, President Zardari announced a FATA reform package extending the PPO (2002) to FATA, thus lifting restrictions on political party activity; curtailing the bureaucracy’s arbitrary powers over arrest and detention; establishing prisoners’ right to bail; excluding women and minors from the territorial responsibility clause; establishing an appellate tribunal; and envisaging audits of funds received and disbursed in FATA by the auditor general. For these changes to be implemented, the governor of NWFP must sign a notification on the president’s directive.

Instead of abolishing the FCR and extending the Criminal Procedure Code to FATA, President Zardari’s reforms limit the PA’s powers of arrest and detention, including granting the right to bail, and requiring an accused person to be produced before an APA within 24 hours of the arrest; his or her case to be referred to a jirga within ten days; and the jirga to submit its findings to the politi- cal administration within 90 days. The collective responsibility clause is now applicable only to an alleged offender’s family rather than whole tribe, although, in the words of a FATA parliamentarian: “The term ‘family’ is flexible. It can include in-laws … in fact, a person’s ‘family’ can even be even bigger than the tribe”. The clause would also apply to women, children under sixteen and adults over 65. This is again a positive step – in 2004, for example, 70 children were reportedly imprisoned in NWFP under the clause, many for crimes committed by their fathers. However, the proposed amendments will have a limited impact. Women will remain the indirect victims of this collective responsibility clause, supporting their family when the adult males are imprisoned in a region where jobs for females are severely limited and movement for unaccompanied women is difficult in some areas.

At present, defendants do not have the right to legal defence. The PA’s judicial decisions, including arrests and punishments, cannot be appealed to any court. Furthermore, since the PA exercises both appointing and appellate power over jirgas, FATA’s judicial system is entirely subservient to him rather than a check on his authority.

The proposed amendments provide for an appellate tribunal, which would be composed of a retired high court judge, a retired bureaucrat with knowledge of the law, and a retired government official with knowledge of the tribal areas and traditions. While providing an avenue of appeal is certainly necessary, this body, whose decisions cannot be appealed further, still fails to mainstream FATA’s judicial system. The ANP’s senior vice president emphasised that: “In Pakistan, a tribunal never provides justice to people”.There is indeed no alternative to extending a provincial high court’s – namely the Peshawar High Court – and the Supreme Court’s jurisdiction to FATA. “Extending the high court’s jurisdiction alone will have a sobering effect on the political agent”, said HRCP’s Kamran Arif. “You have to put the fear of the law into the heart of the local bureaucracy”.

Since no firm date has been given for the actual implementation of these reforms most observers believe that until the security situation in FATA stabilizes it might not be possible to implement them soon. Mr Babar said the new laws would not reduce the powers of the political agent or alter the laws, but they would mean that political parties could campaign there and represent the region in the national parliament after elections in 2013.