History of FATA Reforms

In November 2015, the Prime Minister set up a six member FATA Reforms Committee “to propose a concrete way forward for the political mainstreaming of FATA areas.” At its very first meeting on 21 November 2015, the Committee decided to carry out an in-depth study of all previous attempts for FATA Reforms to determine why successive governments had failed in the past six decades to introduce meaningful reforms or undertake substantial development efforts.

It soon became clear that political mainstreaming of FATA would be a very complex process because it would also involve legal, administrative and security mainstreaming. Equally important would be the sequencing of these reforms and their complementarity in terms of timing and scale. Different attempts at reforms in the past 40 years, though useful, did not bring about a fundamental mainstreaming of FATA because these elements were missing.

A brief history of FATA Reforms has been included in Chapter 2 of the Committee report. The first serious attempt was made when Prime Minister Zulfikar Ali Bhutto formed a Committee under General (Retd.) Naseerullah Babar which included Hafeez Pirzada, Rafi Raza and Dr Mubashar Hassan. The aim of the committee was to create a framework so that FATA could become a part of NWFP for general elections in March 1977. But it was decided to take up the issue after the elections. That did not happen because of a military coup in July 1977.

The second attempt came twenty years later when, in 1996, the government extended the adult franchise system to FATA, so that representatives from FATA could be elected to the National Assembly by the people directly and not through selected tribal maliks. This important step did not, however, increase self-governance, partly because of Article 247 of the Constitution and partly because FATA was not a province or part of another province and could not, therefore, elect its representatives to a provincial assembly, which actually elects ministers to govern the province.

Efforts to introduce the system of local bodies in FATA have totally failed. In 2002, the Government extended Local Government Regulation to FATA and in 2004 some Agency Councillors were nominated by the Political Agents. However, the system did not take off because general public had no confidence in the nominated office bearers who had no powers. In 2012, FATA Local Government Regulation 2012 was prepared to establish local bodies in FATA. However, the Regulation was never promulgated.

Another serious attempt at FATA Reforms was made in 2006, through a special committee, chaired by Sahibzada Imtiaz Ahmad. The focus of this report, submitted in 2006, was on administrative reforms and resulted in the increased independence of FATA Secretariat under a separate Additional Chief Secretary and a substantial increase in development funding for FATA. But in the absence of major legal reforms and concentration of all powers in the hands of political agents, there was no visible improvement in governance or development indicators. The security situation in FATA was also very fragile at that time and the resultant destruction of infrastructure and related facilities could not be restored by a few development projects undertaken by the government during that period.

A Committee on legal reforms, chaired by Justice (R) Mian Mohammad Ajmal, was constituted in 2005 “to recommend modifications in FCR after public consultation across FATA.” The Committee recommended many important amendments in the FCR. Many of these were accepted and implemented in 2011. The amended FCR removed some of its shortcomings but more fundamental changes were needed to bring the judicial system in line with the rest of Pakistan and restore the fundamental rights of the people of FATA, as equal citizens of Pakistan.

Following the introduction of Adult Franchise Act, 1996, the Political Parties Order 2002 was also extended to FATA in 2011, to allow political parties to campaign freely in FATA. This was an important step, but in the absence of provincial elections, its impact was limited. This step did, however, generate greater political awareness in FATA and also intensified the demand for fundamental reforms.

In addition to these partially successful attempts at FATA Reforms, there have been many other studies, conferences and seminars on different aspects of FATA Reforms during the past 10 years, which provided useful inputs for the Committee’s work.

The Way Forward

During its visit to all the seven FATA Agencies, the Committee met not only jirgas of tribal elders and maliks but also representatives of political parties, civil society, traders and journalists. The Committee concluded fairly early in these deliberations that FATA could no longer be retained as a “buffer against foreign aggression.” It must be fully integrated with Pakistan and basic legal reforms introduced to restore peoples’ fundamental rights. At the same time, extraordinary efforts would be required to accelerate development of FATA to bring it at par with the rest of Pakistan. That led to the key recommendation that 3% of gross divisible pool i.e. Rs. 90-100 billion should be allocated every year for the next 10 years, to finance a comprehensive socio-economic development plan for FATA.

The Committee also carefully examined the option of a separate province for FATA but concluded that it was not a feasible option. The Agencies are closely connected with the adjoining districts but not with each other. Similarly, the economic and cultural links between the Agencies and districts are fully strong but not among the FATA agencies. In addition, FATA does not have the financial resources or the administrative capacity to manage a separate province. The merger of FATA with KPK, the Committee concluded, was the only viable option for mainstreaming FATA.

The next important issue was the timing of the merger option. FATA had to be prepared for the merger. As a minimum, the rehabilitation and reconstruction in North Waziristan, South Waziristan and Orakzai had to be completed.

Moreover, the task of extending the provincial boundary right up to the international border with Afghanistan would be a major strategic undertaking and would require a careful realignment of the security infrastructure and recruitment and training of additional FC personnel for the Frontier Corps and the levies.

In addition, an inter-provincial consensus will be required to allocate 3% of the divisible pool to finance the proposed 10-year development plan for FATA.

Considering all these factors, the Committee recommended that the merger of FATA with KPK will require a transition period of about 5 years. Meanwhile, local bodies elections can be held in FATA and the possibility of enabling the people of FATA to elect their representatives to the KPK Assembly in 2018 could be examined.

The demand for abolishing the FCR, a legacy of the colonial era, was widespread and virtually unanimous. But many tribal elders wanted their traditional Rewaj system of justice through jirgas to continue because of the court system in Pakistan, they said, was “time-consuming, expensive and corrupt.” The Committee tried to balance these viewpoints by proposing a blended judicial system. The FCR will be abolished and the jurisdiction of Supreme Court and High Court extended to FATA. But the traditional Rewaj System retained as a local dispute resolution mechanism. The criticism that the proposed Rewaj Act would continue the FCR in another forum is not correct because FCR would be abolished and the jurisdiction of courts will be extended. Within this system, this Act will allow parties, if they so wish, to ask the Agency Judge (not the political agent) to appoint a jirga, whose decision will be appealable. In addition, the new law will also ensure that the Rewaj System is consistent with fundamental rights laid down in the Constitution.

Under Article 247(vi) of the Constitution, “the President may at any time direct that the whole or any part of the Tribal Area shall cease to be tribal area, provided that before making any order under the clause, the President shall ascertain the views of the people of the Tribal Areas concerned, as represented in Tribal Jirga”. The Committee has fulfilled this requirement by holding jirgas in all the 7 Agencies and consulted about 3000 tribal maliks and elders. In addition, the Committee received over 29,000 comments on the hotline of Ministry of SAFRON and most of them supported the merger of FATA with KPK and abolition of FCR.

Despite this extensive process of consultations, there are demands from certain quarters for a referendum on the future of FATA. Given Pakistan’s unpleasant experience with referendums in the past, this option was not considered politically advisable.

The jubilation, with which the news of the Government’s decision of 2nd March has been received in FATA, further reinforces the Committee’s conclusion that these reforms would be widely welcomed by the majority of the people of FATA. After all, the main objective of these reforms is a much-needed improvement in the lives of the people of FATA.

If the recommendations of the Committee chaired by Gen (R) Naseerullah Babar to merge FATA with KPK (then called NWFP) had been implemented in 1976, FATA would not have become “the most dangerous area in the world”, as former US President George Bush called it. Similar views were expressed by General David Patraeus, US Commander of ISAF.

In conclusion, it must be emphasised that the implementation of these reforms may not be smooth or easy because, apart from the inherent complexity of this multi-dimensional process, there are strong vested interests, which would like the status quo in FATA to continue. But history will not forgive us if we lose this historic opportunity to mainstream FATA.