EXECUTIVE SUMMARY AND RECOMMENDATIONS

The military operation in South Waziristan is unlikely to succeed in curbing the spread of religious militancy in the Federally Administered Tribal Areas (FATA), unless the Pakistan government implements political reforms in that part of the country. Pakistani Taliban groups have gained significant power in the tribal agencies, seven administrative districts bordering on Afghanistan. While state institutions in FATA are increasingly dysfunctional, the militants have dismantled or assumed control of an already fragile tribal structure. This encroaching Talibanisation is not the product of tribal traditions or resistance. It is the result of short-sighted military policies and a colonial-era body of law that isolates the region from the rest of the country, giving it an ambiguous constitutional status and denying political freedoms and economic opportunity to the population. While the militants’ hold over FATA can be broken, the longer the state delays implementing political, administrative, judicial and economic reforms, the more difficult it will be to stabilise the region.

Badly planned and poorly coordinated military operations, followed by appeasement deals, have accommodated militant recruitment and actions, enabling Pakistani Taliban groups to expand their control over the region. Many militants, including commanders fleeing military operations in Northwest Frontier Province (NWFP)’s Malakand division, have also relocated to FATA. Instead of a sustained attempt to dismantle and destroy the Tehrik-i-Taliban Pakistan (TTP) network – led by Baitullah Mehsud until his death on 5 August 2009 in a U.S. drone attack and now by his deputy Hakimullah Mehsud – the military continues to rely on a two-pronged approach of sporadic strikes and negotiations with militant groups. Given that such operations are, by the military’s own admission, restricted, militant networks are ultimately able to absorb the blows even as indiscriminate damage alienates the local population caught in the crossfire.

The current military operation may well be a more extensive attempt to root out the Baitullah Mehsud network in South Waziristan but it remains an incomplete effort and could even prove counterproductive because of parallel efforts to reach or consolidate peace deals with rival TTP groups. It has yet to show that it will be directed at the Afghanistan Taliban or al-Qaeda strongholds. It has also already spurred a new round of internally displaced persons (IDPs) with little to show that the country has planned for that eventuality.

More than a million FATA residents already have been displaced by the conflict, mostly from Bajaur agency in the north and Waziristan in the south. Ongoing military operations in Khyber agency have forced as many as 100,000 to flee to safer locations in NWFP. While the military restricts domestic and international humanitarian access to FATA’s conflict zones, neither the Pakistan government nor the international community has addressed the full costs of the conflict to civilians. Mala­kand’s IDPs have justifiably received considerable domestic and international attention, but the needs of FATA’s IDPs are yet to be addressed.

Militant violence and military operations have also undermined any prospect of economic development in the tribal agencies. FATA was severely underdeveloped even before the rise of militancy due to government neglect, legal barriers and structural impediments to investment and private enterprise. With no economic regulation or proper courts, a black economy has flourished, notably a pervasive arms and drugs trade. Violence is now contributing to poverty, with the lack of jobs making FATA’s residents vulnerable to militant recruitment.

The military’s resort to indiscriminate force, economic blockades and appeasement deals is only helping the Taliban cause. The Pakistan government could win hearts and minds and curb extremism through broad institutional, political and economic changes to FATA’s governance. The government should dismantle the existing undemocratic system of patronage driven by political agents – FATA’s senior-most civilian bureaucrats – as well as tribal maliks (elders) who are increasingly dependent on militants for protection. It must enact and the international community, particularly the U.S., should support a reform agenda that would encourage political diversity and competition, enhance economic opportunity, and extend constitutionally guaranteed civil and political rights and the protection of the courts. Earlier attempts to counter extremism in the tribal areas had failed because they prioritised short-term gain over fundamental changes to the political and administrative set-up.

On 14 August 2009 President Asif Ali Zardari announced a reform package lifting restrictions on political party activity; curtailing the bureaucracy’s arbitrary powers of arrest and detention; excluding women and minors from collective responsibility under the law; establishing an appellate tribunal; and envisaging audits of funds received and disbursed by the auditor general. The Pakistan Peoples Party (PPP)-led government has described this reform package as the first step towards mainstreaming FATA, and much remains to be done. It must now swiftly implement these measures and, more importantly, take steps to fully incorporate the tribal areas into the federal constitutional framework, with provincial representation, legal protections under the Criminal Procedure Code and the national and provincial courts.

Donors, particularly the U.S., have allocated significant money for FATA’s development, but most is channelled through unaccountable local institutions and offices. This severely limits aid effectiveness and may even impede rather than encourage democratisation. The international community should recognise that the opponents of reform are not the people of FATA but the military and civil bureaucracies and the local elite, all of whom would lose significant powers if the government were to extend full constitutional and political rights to FATA.

RECOMMENDATIONS

To the Government of Pakistan:

Pakistan’s Criminal Procedure Code, in accordance with Article 8 of the constitution and internationally accepted human rights standards, including prohibition of collective punishment.

2.  Extend full provincial rights to FATA by merging it with NWFP, in turn:

a) merging the Frontier Regions adjoining Bannu, Dera Ismail Khan, Kohat and Peshawar districts with their connected districts;

b) allocating seats for FATA’s seven tribal agencies in NWFP’s provincial assembly, with constituencies delimited by population, and devised after extensive consultations with stakeholders;

c) allowing the NWFP provincial assembly and the National Assembly (lower house of the national parliament) to legislate FATA policy;

d) eliminating the role of tribal jirgas (councils of elders) to hear civil and criminal cases, and establishing civil and criminal courts at the subdistrict and district levels, presided over by civil and criminal judges;

e) allowing defendants the right to legal representation and appeal to higher courts, and extending the jurisdiction of the Peshawar High Court and the Supreme Court to FATA; and

f) abolishing the FATA secretariat, the FATA Development Authority, and the office of the political agent, and transferring their authority to the NWFP secretariat, relevant provincial line ministries and district departments.

3.  Establish a uniform judicial system across NWFP by repealing the Nizam-e-Adl 2009 that imposes Sharia (Islamic law) on NWFP’s Provincially Administered Tribal Areas (PATA), and fully incorporating those districts into the provincial and national justice system.

4.  Prioritise relief and rehabilitation to FATA’s internally displaced persons and engage in broad consultation with local and provincial leaders on a plan for relief, future reconstruction and resettlement with the goal of sustainable provision of public services, economic infrastructure and citizen protection through civilian led law enforcement and judiciary.

5.  Disband khassadars (tribal police) and levies (official tribal militias) and absorb their members, after requisite training, into the NWFP police force, while strengthening the capacity of civilian law enforcement agencies to maintain law and order in the tribal agencies and the bordering Frontier Regions as well as NWFP’s settled districts.

6.  Disband all lashkars (private militias) immediately and take action against any member guilty of abusing civilians’ rights.

7.  Encourage private investment and economic growth by:

a) developing the physical structure of the tribal agencies, including viable road networks, farm-to-market roads as well as energy and irrigation projects;

b) facilitating interest-free loans and removing restrictions on lending to FATA residents;

c) while the FCR remains in force, preventing any legal action against small and large businesses under the collective responsibility clause in FATA and NWFP, including forced closures, seizure of property and economic blockades against tribes;

d) enabling private asset formation by implementing land reforms to partition collectively owned property and establish legal individual ownership through a transparent process, enforceable by regular courts; and

e) strengthening FATA’s public education system to make FATA’s students nationally competitive by raising teacher salaries in tribal agencies to higher levels than elsewhere in the country, improving school facilities, and inculcating strong written and verbal English-language skills.

f) Prioritise relief and rehabilitation of FATA’s IDPs.

To the U.S. and the Broader International Community:

8.  Develop meaningful dialogue with the government on broad institutional reform to FATA’s governance, without which taxpayers’ money is unlikely to achieve the desired results.

9.  Refrain from transferring control over development programs from international NGOs and other implementing partners to the Pakistan government until the FATA secretariat, the FATA Development Authority and the office of political agent are abolished and their authority transferred to the NWFP secretariat, relevant provincial line ministries and district departments.

10.  Establish financial oversight mechanisms over donor-funded programs that do not rely on the political agents and tribal elites but instead include more representative and independent bodies such as national and NWFP-based NGOs with proven records of carrying out programs in FATA.

11.  Linked to political reform, establish mechanisms for community and civil society participation along with provincial and national ministries in design of comprehensive FATA development plans covering small farm assistance, accelerated infrastructure construction, social service delivery, vocational training programs for FATA workers, particularly women, to make them more competitive in the local and national job markets and civilian police, judiciary and support for rule of law.

12.  Join the Pakistan government, the Office of the United Nations High Commissioner for Refugees (UNHCR) and humanitarian NGOs in urgently preparing a comprehensive plan for IDPs in FATA expanding assistance to those displaced by conflict that assures domestic and international humanitarian access and their resettlement once citizen protection can be guaranteed.

13.  Condition military aid on demonstrable steps by the military to support civilian efforts in preventing FATA from being used by extremist groups to launch attacks from Pakistani territory within its region and beyond; if the Pakistani military does not respond positively, consider, as a last resort, targeted and incremental sanctions, including travel and visa bans and the freezing of financial assets of key military leaders and military-controlled intelligence agencies.

14.  Maximise the potential impact on proposed reconstruction opportunity zones (ROZs) by:

a) expanding the commodities identified for duty-free status to include staples of the local economy such as leather goods, wool products, carpets and furniture; and

b) requiring significant employment of FATA residents in companies participating in the program and where possible a preference for local FATA companies in program participation.