The Khyber Pakhtunkhwa provincial Assembly has sneakily passed a resolution asking the federation to vivisect the province. The speaker did not order a headcount for the resolution that calls for carving out a Hazara province from the current boundaries of Khyber Pakhtunkhwa. The constitutional and legal status of the move is moot and may be challenged in court. Ironically, the Pakistan Tehreek-e-Insaaf (PTI), Pakistan Muslim League-Nawaz (PML-N) and the Jamaat-e-Islami (JI), which were instrumental in bringing this resolution, want one section of the Pakistani population to have the right to self-determination, including a new province based purely on linguistic grounds, but seem hell-bent on throwing the Pashtuns of the Federally Administered Tribal Areas (FATA) back not just a few decades but all the way to the seventh century. The PTI, PML-N and JI are key players in the dialogue with the Tehreek-e-Taliban Pakistan (TTP), which, if successful, could turn already forsaken FATA into the Federally Abandoned Tribal Areas.
While the new administrative structure, including the judicial system along with a new high court in a modern state is considered desirable for the Hazarawals — no prejudice intended against their demand — the parties rooted in Punjab and Islamism are determined to shove FATA further down the primitive abyss of the jirga (tribal court) and Taliban sharia. The TTP’s political cheerleaders in Pakistan paint a romantic picture of the defaced and dysfunctional tribal justice system, which even in its most pristine and functional state was quite brutal and arbitrary, especially to the weak. In hypocrisy of the tallest order, the rest of Pakistan gets to enjoy, at least in principle, the right to the due process of law under Article 10-A of the constitution, and FATA is being pushed into the deadly embrace of the jirga/sharia-mongers.
Those presenting the jirga in the media as the panacea to all tribal troubles forget that it is this very institution that frequently settles feuds not just through payments of blood money or cattle heads but also by giving away young girls in marriage in the notorious practice called swara. The manipulation-prone jirga system, wherein no provisions for evidence, forensics or female participation exist, clearly flouts the fundamental rights guaranteed in the constitution, especially Article 25 that calls for all citizens to enjoy equal protection of the law and proscribes discrimination on the basis of sex. No doubt, the great values (arzakhtoona) of Pashtunwali (the Pashtun code) like hospitality (milmastia), sanctuary (nanawatay), deference (ehteram) to elders (masharan) and deterrence through revenge (badal) along with the institution of jirga were once the pillars of a primordial democratic tribal society. However, over the centuries, the commune-like structure of the tribes gave way to exploitative structures, especially the British-introduced Maliki aristocracy and later the TTP’s barbaric sharia. The Maliki arrangement was merely a modification of the Sandeman system deployed by the British in Balochistan, wherein they dealt with the tribes through tribal chieftains. As Sir Olaf Caroe, the last British governor of the North West Frontier Province (now Khyber Pakhtunkhwa) himself noted, in the absence of a well-defined hierarchy in the acephalous Pashtun tribes, the British created a system of stipends (maujib) for handpicked leaders (Maliks) in a largely transactional relationship. Unfortunately, a self-serving arrangement by a colonial power is being touted today as the replacement for modern constitutional structures.
Leaving FATA in constitutional and legal limbo also has geopolitical motives and ramifications. The Pakistani state’s pretence that FATA is ungovernable, while claiming it as an integral part of the state, is a ruse to continue using it as a base for intervention in Afghanistan and buffer against a blowback. Turmoil, not order, in FATA is what Pakistani strategic planners have wanted for decades in order to unilaterally impose a government of their liking in Kabul as well as to neutralise the Pashtun nationalist-irredentist movement. Ironically, the most vociferous champions of the status quo in FATA and the Durand Line and tribal justice are not the Pashtuns. The mess created in FATA is now threatening Khyber Pakhtunkhwa — dubbed the ‘Fatafication’ of the province by some. However, the Pakistani state’s thrust still is anything but regularising the tribal areas, despite the constitution bestowing tremendous powers upon the president to usher in such reform. Indeed, Article 247(6) of the constitution empowers the president, after seeking the opinion of a tribal jirga, to “direct that the whole or any part of a Tribal Area shall cease to be Tribal Area”. Clearly, the framers of the 1973 constitution envisioned bringing FATA into the mainstream, not alienating and marginalising it any further.
No matter how negotiations with the TTP end, lasting peace in Pakistan, Afghanistan and FATA itself will remain elusive without addressing the constitutional status of the tribal areas. Abolishing the 113-year-old draconian Frontier Crimes Regulation (FCR) could be a start but repealing the FCR is neither possible by itself nor will it change much unless FATA is given provincial status or allowed to join Khyber Pakhtunkhwa province. The judicial, revenue and policing systems — the sine qua non of a state — have to follow the constitutional reform. The Maliki system cannot hold its own after the TTP onslaught — political parties and the local and provincial government systems must upend that decaying structure. The political parties, however, ought to help determine what the people of the seven tribal Agencies want. The reform task, as arduous as it is, will become perilous if the denizens of FATA feel that a party, province or the federation is imposing the solution.
A major issue attached to the reform in FATA is the status of the Durand Line and a Pashtun nationalist-irredentist sentiment that, though on the ropes, still exists. Candidates in Afghanistan’s upcoming presidential elections have danced around the status of the Durand Line. Until a permanent solution can be found to the border issue, Afghanistan could consider adopting something similar to the China/Taiwan policy or the former West Germany’s Neue Ostpolitik (New East policy) that in essence meant a détente without dropping the mainland’s revanchist claims. This is one area where the Pashtun nationalist outfits, the Awami National Party and the Pashtunkhwa Milli Awami Party can play a huge role. These two parties have effectively accepted a two-state solution for the Pashtuns; the least they can do now is defend the constitutional rights of the people they claim to represent within the federation lest the state codifies the status of the federally abandoned tribal areas as such.
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