On the societal level, the Taliban militancy in FATA owes itself to the dilapidated governance sanctioned by the Frontier Crimes Regulation (FCR). The Taliban capitalised on the state’s delivery deficit and struck a deep chord with locals. Repealing the FCR and substituting it with the state’s laws enforced in the rest of Pakistan will help fix the question of militancy in the hinterland. Perhaps the bare minimum criterion of governance may entail the provision of at least those essential services as agreed upon in the social contract between the state and its people. These include the provision of security from external and internal threats, the implementation of state laws and the ensuring of public services, most noticeably the justice system. The FCR falls short on several counts.
With the relocation of the Taliban in droves to FATA, the stage was set for the unfolding of a new episode of militancy. In FATA, bad governance as enshrined in the FCR has provided permissive conditions for the rise of Taliban militancy. Led by a political agent (PA) under the FCR, justice is perhaps the biggest casualty. The FCR makes the PA an authoritarian figure. Under Articles 8 and 11 of the FCR, a deputy commissioner may constitute a council of elders to come to a finding on an assigned dispute in both civil and criminal references respectively. In both cases, the elders are the DC or PA’s appointees. In a civil reference, when a PA constitutes a council for a finding, he is not bound to give a verdict to the effect of a finding. Section 10 bars civil courts from taking cognizance of any decision that the PA has proceeded with. In a criminal reference, when the PA constitutes a council, the accused will be intimated. If the accused raises an objection to the appointment of a member, it is up to the discretion of the bureaucrat whether to entertain such a request or not.
One can never justify this draconian regulation in the 21st century. This black law is untenable both on humanitarian grounds and in terms of its vanishing utility. Under chapter IV, ‘Penalties’, section 21 enshrines the gruesome violation of human rights. Contrary to the modern notion of individual liability before law, this section envisages collective punishment for a crime. The whole tribe may get punished for the very abstract notion of the “hostile or unfriendly manner” of a person or two hailing from the tribe. Under section 48, no one can appeal against any decision or verdict passed under the FCR. That means no court can be moved against any decision delivered under the law irrespective of how unjust the verdict may be. Nevertheless, as per section 49, the commissioner can revise a decision, decree, sentence or an order given under the regulation.
The state’s shunning of its responsibilities engenders a breeding ground for the rise of non-state actors to perform state-like functions. This is exactly what happened in FATA. Given their sheer number, the battle hardened and ideologically charged Taliban had ample opportunity to replicate their Afghan experience. The Taliban exploited the lacunae in the FCR system to the best of their advantage. In order to gain sympathy from the locals, the militia employed exactly the same tactics they had carried out when they first emerged in Afghanistan. They took criminals head on. Executions were carried out in public, ostensibly to discourage criminality. Similarly, lax moral behaviour was sternly dealt with. The Taliban overplayed their hand in inculcating in the tribal folk that they had better alternatives in the holy Quran and hadith (the traditions of the Prophet, PBUH), replacing the FCR. Unlike the typically arrogant bureaucrat, the Taliban executives were easily accessible and welcoming. Initially, the militants meted out speedier and quicker justice and won over many locals while terrorising many others.
To many people, the Taliban were seen as healers for their many festering wounds. Unlike the FCR system whereby the rich and resourceful would prevail in influencing the outcomes of decisions both under the FCR jirga (council of elders) and people’s jirga, the poor and destitute had plenty to celebrate under the Taliban. Once a decision was delivered in a case, execution was swift. Unsurprisingly, the pillars of the old regime became the target. By February 2006, the Taliban had killed some 150 pro-government tribal elders in the tribal belt. According to the South Asian Terrorism Portal, since May 2005 to July 2014, no less than 85 tribal elders were killed across FATA. Some estimates put the figure of tribal elders killed in FATA as high as 1,500. The militants did not spare state institutions, especially their executive services. The army, police and the Frontier Corps became the main targets of the Taliban destruction spree. Thanks to the state’s incapacitation, the militants established rural strongholds. By April 2009, with the Taliban expanding their fiefdoms, the militia had 11 percent of Pakistan’s territory under their complete control, contested control or influence. The sheer expanse of the Taliban was truly breathtaking.
Over the decades governance woes have only worsened. The state delivery deficit has undermined support for the government and has only burnished the credentials of the Taliban. Good governance is the solution. In order to shed the lustre of militants in FATA, the tribesmen need to be genuinely empowered. The government should repeal the FCR in its entirety and replace it with the laws applicable throughout the country. Parliament, not the president, should be authorised to enact laws for the region. Moreover, FATA should be either merged with Khyber Pakhtunkhwa or made a separate province. The legal status of jirgas should be completely abolished and replaced by the country’s judicial system applicable in the rest of the country. It is only when good governance replaces bad governance that militants will be seen the way they should be.
The writer is a freelance journalist based in Quetta