ISLAMABAD - The recent military action in FATA has spurred a debate about the future status of the tribal regions that have suffered gravely in the war on terror and have always been an area of unrest since the colonial days.
Majority of the natives, politicians and political analysts are urging the government to abolish Frontier Crimes Regulations and integrate the tribal regions with KP province once military vanquishes the militants. FATA’s governing act, the Frontier Crimes Regulation (FCR), has been heavily criticised as being a “draconian law.”
Under the FCR, the Jirga system is provided as the mean of judicial authority in the area. While the Jirga is not mentioned by name in the statute, a system of “tribal elders” is expected to sit in on disputes of a judicial nature. However, these tribal elders sit in under the authority of the political agent who is the administrative authority in his own agency, meaning that the political agent is the final judge in every Jirga decision. This leads to a warped separation of powers, breaching article 175(3) of the constitution, which provides that the judiciary must sit separate to the executive.
The FCR allows for the confiscation of property and the arrest/detention of individuals without due process. Additionally, according to the constitutional status of FATA, the Supreme Court’s jurisdiction does not cover FATA, thus, the court, expected to protect the fundamental rights of citizens of Pakistan, cannot protect the rights of FATA’s citizens.
However, talks about reforms are under way and in 2011, amendments were made to the FCR. One such amendment was to give the FATA Tribunal, an appeals body to Jirga decisions, more independence.
“Such reforms are useless unless one actually educates the tribesmen about them,” said Mansoor Khan, an official of FATA Research Centre. The changes required are not those merely made on paper. He argues that such reforms never go past the ink used to write them, and that practical reforms need to be made.
Jirgas according to Khan are no longer operational as they are under the influence of different parties, such as the militants. These parties have their own agenda and do not look at the interests of the affected people. He states reform itself is an extremely difficult task in FATA. With the area being a war-zone, half of the population is internally displaced and this situation makes reforms difficult. Only when the militancy ends and law and order is properly established, allowing IDPs to return to their homes, reforms can be effective.
In regards to the effect on the Jirga, Khan states that it is a part of Pashtun culture and whether one looks at it from the angles of the FCR Jirga or the Qaumi Jirga, it is just a cheap and speedy method of justice as compared to long and expensive court procedures. However, in order to make it effective, the law and order of the area must be set and militancy should end; only then can the Jirga play a successful role. In regards to proposed reform, Khan stated that right now, proposals as to the abolishment of the FCR, or the question of a separate province are not essential. Without infrastructure or a coherent bureaucracy, such reforms have no effects. The real issue at hand is militancy.
According to Latif Afridi, a Peshawar-based lawyer, the FCR was created to subdue the tribesmen of FATA. Its continuance has proven to be a major mistake and is the source of all the major issues present in FATA. It proved to be ineffective in governing the area properly and due to this inadequacy the people of FATA have suffered terribly in the war on terror.
Some 1,300 tribal elders have been killed, 50,000 homes have been destroyed by Taliban attacks, and 85 per cent of the Mesud tribe now consists of IDPs. Educational institutes, hospitals, roads and bridges have been destroyed and not reconstructed. By abolishing the FCR, merging FATA with KP, and giving special packages to the tribesmen, FATA can be mainstreamed into the rest of Pakistan.
In regards to FATA merging with KP, Latif Afridi proposes the formation of an effective executive and judicial network which enforces the writ of the government. Along with this, there must be a very detailed policy that will help in returning peace to the area and rehabilitating the tribesmen.
Afridi argues that the Jirga is a permanent institution of the Pashtuns and criticises the FCR for disfiguring the Jirga. With political agents and elders in the FCR Jirga taking bribes, people no longer trust the Jirga. He says that even after reforms, the Jirga will always be present. After such reforms take place, he proposes that the Jirga be used as a form of alternated dispute resolution, and should be formalised by the government. An option should be provided that allows one to opt for the Jirga when court proceedings take too long, as this will be a faster way of providing justice and a proper check and balance system be put in place to govern this Jirga, Afridi proposes.

–The writer is a freelance contributor.