The geo-strategic considerations and the Russo-phobia put constraints on the British imperial rule to introduce reforms in what came to be known their North West Frontier. The fearful British policy makers equated the reforms in such a ‘dangerously explosive’ land with holding match to a “gunpowder magazine”. More than a century has passed since then, but still the same fear looms large. The Indophobia of the present Pakistani state has replaced the Russo-phobia of the then British Empire. It seems that the fate of FATA, the terra incognita of the British, is still not out of that strategic loom.

However, the demand of FATA’s Parliamentarians and preparing a draft bill for a proposed constitutional (twenty-second) Amendment Act, 2015, is no less a silver lining in this otherwise gloomy firmament. The bill aims at seeking merger of all agencies of FATA in the Provincially Administered Tribal Areas (PATA) of Khyber Pakhtunkhwa province. This is by no means an ideal step; however, it is a big leap forward. As in this era of human rights, the very humanity of FATA residents is being challenged by keeping intact the now much maligned and dread Frontier Crimes Regulations. FATA’s status being intact so far is the manifestation of the rulers’ inability to calibrate for their people laws befitting to the need of modern times and get rid of the tyrannical regulations enacted by the imperial British for their own reasons.

The status of FATA in the constitution of Pakistan is very anomalous as FCR militates against the very spirit and articles 8 of the constitution of Pakistan which guarantees human rights.These draconian regulations are at worst obnoxious and at best preposterous on humanitarian and legal grounds. The tribal people may elect their representatives to the parliament of the country; however, these representatives cannot legislate for FATA. The political agent, no less than a viceroy in his own right, is the repository of enormous powers, both administrative and judicial. The tribal people cannot challenge the decisions of political agent in any court of law in the country except in a bureaucrat-run FATA tribunal.

In order to alter the prevalent set-up and replace it with a less coercive and ‘more’ benevolent dispensation, the saner minds have decided to play their due role. However, FATA’s representatives’ this move evoked a vibrant debate on mass and social media regarding the fate of FATA in future. This debate is taking the view of whether FATA should be integrated into PATA, or given the status of a Separate province or merged with the settled district of Khyber Pakhtunkhwa.

The move of the parliamentarians did not go without challenge from some sections of the so called tribal elders. Being the stakeholders and privileged, they opposed the move of the parliamentarians with their own set of demands. For them FCR is secondary to the other pressing issues like honorable return of IDPs and other amenities of life.

If the demand of some tribal elders does not hold water, the parliamentarians’ bid for merging FATA into PATA is not an ideal option either. The modus Vivendi will not solve the problems faced by the people. PATA’s legal framework is not without lacunas and complexities. Unlike the Federally Administered Tribal Areas, PATA is subject to Pakistan’s basic criminal and civil law framework and falls under the jurisdiction of the provincial Khyber Pakhtunkhwa’s legislature and the Peshawar High Court and Supreme Court. However, under Article 247 of the constitution, laws apply to PATA, as in FATA, are specifically extended by the governor with the president’s consent.

What came to be known as PATA was formally included in the now renamed Khyber Pakhtunkhwa in 1969 followed by PATA Regulation in 1975 by the federal government. According to socio-political analyst, Khadim Hussain, “the PATA Regulation was a weird combination of authoritarianism”, and “ignorance of the changing social structure…” Since then PATA is being governed through hotchpotch of various parallel legal systems, like Nizam-e-Adl Regulation 2009, Regulation 2011, Action in Aid of Civil Power (AACP), which are not without criticism from the human rights activists and civil society. So in the presence of such “weird authoritarianism” effective and accountable governance is an unfulfilled dream. Therefore, merging FATA into PATA seems not to be a judicious act in the first place.

Secondly, granting a separate provincial status to FATA is not without hitches either. Though rich in various resources, FATA has no industries, scanty agricultural production and no record of land and revenues which are required for running a province. Without financial resources it is not feasible if not categorically impossible. Moreover, given the topography and lack of road infrastructure connecting South Wazirstan in the far south with Bajaur in the far north will make it difficult for the different tribal agencies to connect with each other through short communication routes. By the way where would be its capital established? If history is anything to go by we need not overlook the implications and chagrin, from the concerned quarters, following Lord Curzon’s partition of Bengal in 1905 and President Ayub Khan’s capital change from Karachi to Islamabad. However, a small separate province of the size of tribal areas will get as many Senators as the rest of federating units have.

The third scenario that emerges is the merger of FATA with Khyber Pakhtunkhwa. The inhabitants of tribal areas are ethno-linguistically, socially and economically linked and connected with the adjacent settled areas and hence presume no issue of merging with Khyber Pakhtunkhwa. It will decrease their sense of deprivation and resentment being divided in different administrative compartmentalization which is a colonial construct. Presently FATA has representation only in the National Assembly; its merger with Khyber Pakhtunkhwa will give them representation not only in the Provincial Assembly but strengthening their position in the National Assembly, effectively playing their role for the solution of their problems. FATA’s merger with Khyber Pakhtunkhwa will also have the added advantage of squeezing and depriving space to the non-state actors, the stronger the system and the lesser the chances to challenge the writ.

It is high time to rethink and revisit the policy of looking at the ‘tribal areas’ in the colonial prism as gunpowder magazine. The clichés of some obstructionists that tribesmen have ‘special’ customs and traditions, incapable of absorbing the police and judicial systems of the settled areas, could be safely overlooked. Last but not the least, acting as an insulator to the march of progress and development and an incubator to the uncanny extremist creed of the yahoos and violent non state actors in post 9/11 scenario, this anachronistic and colonial relic, the white man’s black law (FCR), needs to be said adieu to, the sooner the better.

Writers: Dr. Hanif-u-Rahman and Jamshid Khan

Dr. Hanif-ur-Rahman teaches History in Peshawar University and Jamshid Khan is Lecturer in AKDC, Bannu.

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